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Quarantine for corona virus

Good morning, While it's only a hypothetical question at this point of time, I'm curious to find out how should a medically recommended quarantine be treated in light of the recent outbreak. Obviously, once infection confirmed its recorded as sickness, but what's your point of view if test is negative but quarantine is recommended? Paid or unpaid leave, reduced 50% weekly pay? PPA time is only a small proportion for 14 days, working from home is not an option in most roles. (We currently don't buy into a sickness insurance scheme) Thank you
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  • In reply to Peter:

    Peter,

    I think your emphasis is important, in the case we're imagining. Whilst n-coronavirus is headline-grabbing, objectively speaking the risk of contamination is still extremely low. Depending on the business, one may want to decide which scenario is more likely: that an employee is irrationally panicking/just malingering, or that they have actually been exposed to the infection? I would suggest that in the majority of cases the former is far more likely. Of course, as this issue expands the position may change (and will be rather different in countries more exposed) but, for the moment, it might still be more rational to make absence of this sort unpaid pending more information, to discourage malingering and panic, than to pay it by default.
  • In reply to Kayleigh :

    I certainly agree with that intention, but I think pointing it out to anyone planning a holiday in one of the affected area is all that can be done as a "practical" issue, since they cannot return to work (and you of course can't let them return) which they might not have thought of (e.g. in the face of, say, (hypothetically), assurances from their holiday company that there is no risk). They might not have realised that the employer can accept no such assurances in the face of the government's advice and H&S law.

    That might make them realise that they will be (effectively) forced to absent themselves at the employer's cost on return and think twice as a moral/responsible-employee issue, but if there is good reason for them to go, then I see no legitimate way to prevent them doing so.

    P

  • In reply to Peter:

    Thanks Peter, much appreciated!
  • In reply to Robey:

    Robey: the absence cannot be made unpaid! You cannot cease offering an employee work without being in breach of contract and compensating for that breach "in lieu of" pay. (As in payment "in lieu of" notice)

    The issue is not whether the employee believes they have contracted the virus, but the H&S Act's requirement that the employer not take the risk that they have.

    As in the example I gave, an employee "choosing" to absent themselves for "stress" just because a GP has told them to get more rest can be unpaid (and disciplined) but in that case there is no risk to other employees or the public by them continuing to work (even if they are suffering from stress). They are choosing not to work, in breach of their contract, without justification.

    In this case the risk is that if they are permitted to work they might infect other workers and, with them or through them, members of the public. Their choice, to work or not is irrelevant.

    In H&S risk assessment terms, the risk is small, but as the outcome is fatality, and the numbers affected are potentially significant, even a tiny risk is utterly unacceptable.

    The H&S term "so far as is reasonably practicable" does not mean "as far as is possible"; it sets (some) limit on practicability, i.e. is the risk is small and the outcome minor, then the risk is acceptable. In this case the risk is tiny but the potential outcome is death!

    ....and death of possibly many people

    If the employee has been anywhere near a near a virus outbreak, they cannot be allowed to return to work, no matter what their personal choice is. That makes it the employer's decision (obligation)  not to offer them work, that in turn is a breach of contract, that in turn means they must be fully compensated for the damages due to that breach: The equivalent of the full pay they would have received while working.

    Not my choice; it's what the statutes (and civil contract law) require.

    P

  • In reply to Peter:

    ....Ironically, however, if they actually develop the virus, they will then be "sick" and can be paid only sick pay.... Sometimes the law's an ass.... With or without an "r".

  • In reply to Peter:

    Forgive me for pressing the point, Peter, but there are many situations where an employer and an employee may disagree on the level of risk, including where there is a risk of death.

    An employee may refuse to attend work because - as I suggested - of poor road conditions and there being a risk of death to themselves and other road users. The employer may disagree that the risk justifies not attending work or prefer to keep their options open, in which case the absence may by default be unpaid. Should the employer subsequently see evidence that the employee's judgement was correct (such as photographs of the road conditions, and police and/or Met Office warnings) then they can retrospectively decide that the absence is paid after all.

    In this case, if an employee has recently been to China or discovers they have been in contact with someone who has become n-coronavirus symptomatic then it would, indeed, be correct to default to paid absence. If, however, they went to their local Chinese restaurant and one of the waiters sneezed, it might not.

    The point being that in the absence of better evidence there is little justification for automatically paying people who decline to come to work and, in fact, doing so may contribute to the atmosphere of media-fuelled panic. If Fred doesn't come to work and word gets out that he's self-quarantined, how many more people are going to not come to work tomorrow because they work near Fred? Now, if Fred has recently come back from a conference in Hong Kong, fair enough. But if he never returned to the office after that conference, do the others get to self-quarantine despite never have been near Fred since he was exposed? No, of course they don't. And if Fred in fact, is panicking because his neighbour is Chinese (despite the fact that she's not been back to China for two years), does he get full pay for his self-quarantine? No, of course not.

  • In reply to Robey:

    Robey, you seem to be missing the point here. It is NOT the employee saying that they should not attend work, it is the H&S Act.

    An employee who has been in a place currently recognised as creating a risk of infection (or having had contact with someone who may be infected) is PREVENTED from working by their own H&S obligation (s7 H&S Act (1974)) or the Employer's (s2 of the Act).

    Given the current Government advice, that such persons should self-quarantine for 14 days, the absence therefore rests on a simple matter of fact: Have they been at risk of infection or not?

    If yes, then they CANNOT work, since the risk assessment REQUIRED to be carried out (by the employer) will inevitably place the risk of passing on the infection as unacceptable (not because its likely incidence is high, but because the outcome is so severe) The equation is Hazard (danger) x Incidence (in a given period) = Risk.

    In this case the hazard is deadly and, while the incidence MIGHT be low if they are "clear" of infection, if the hazard is exposed for only moments (the disease being reported as highly contagious) then if the hazard exists it will be transferred readily to every person they come in contact with, at work, on the way to work, and on the way home.

    Given also that the virus can be passed BEFORE symptoms appear, the risk of someone who has been into an area where the virus is active having come into contact with someone else who is infectious but (at that moment) is asymptomatic is at least moderate (which is how it has managed to speared across the world already).

    So on a risk-assessment basis an employee who even MIGHT be a carrier must be told not to report for work. On which basis that suspension MUST be paid.

    It is NOT the employee's choice.

    If, by some anomalous circumstance, the employer permits the employee to work, (say, because they drive themselves to a workplace where they constantly work alone) then they will still be paid. Clearly, in such circumstance, there is no risk to other workers or the public, but should either working or the journey to work (being in law a factor governed by the employer's "undertaking" even though on the employee's own time) place the employee in contact with others, then the EMPLOYER cannot permit it, driven by the duty of care to make their undertaking safe "so far as...." etc.

    In the circumstance you offer as refuting this, that of employees "choosing" to judge driving conditions unsafe, even though they prove to be so, I'm afraid that too could fail to stand.

    If (say) the Met Office had issued weather warnings, and the Police had advised against unnecessary travel, then an employee heeding those warnings and deeming their travel to work "un-necessary" would indeed be making a choice, based on their perceptions of their own driving skills and the importance of their employer's productivity. (Thus a nurse might feel obliged to take the risk of causing death or injury to herself and others in weather-based RTA on the way to work, whereas a dustman might well not). That choice is, nevertheless, an INFORMED one. They have heard the reports that (some) roads are dangerous or impassable, but they know other routes. They look out of the window and the road outside, and the sky, is clear, with no threat of snow; therefore it would be reasonable for them to at least attempt to go to work. If, en-route, they encounter different conditions then they can turn back, BUT, the fact that there is no snow and the roads are gritted where the employment is (or where the employer lives) DOES NOT determine whether their decision to travel (or not) is right or wrong and, should the employer withhold wages in those circumstances, then the employee could pursue that issue.

    The outcome of that pursuit (in an ET or as a civil claim) would depend on the evidence and whether the employee's choice, based on the evidence they had to hand AT THE TIME (warnings, police advice, local conditions, their driving experience (in total or in poor conditions) justified their Risk Assessment (calculated as above) being that their journey would be significantly unsafe, and thus precluded by the '74 Act's requirement for them to care for their own safety and that of others when working (or engaged on activities in relation to work). In that case the EMPLOYER's "choice", demanding their journey take place (based on the employer's priorities) being irrelevant.

    The safety of employees and the public, in the face of authoritative warnings of risk, might (sometimes) require case-by-case assessment of that risk to determine whether it is one justifiably taken or not, but where attendance at work is concerned the "principle of prevention" applies. (MOHSR, schedule 1). In this case if the employer determines there is a risk, using the warnings given as a basis for that assessment then they must pay for any resultant suspension; if they determine there is no risk (say, for "commercial" reasons), and that judgement is found flawed, then the sky will fall on them. And an employee unpaid, based on the employer's post-facto judgement, can challenge on both the grounds of withheld wages and for the employer breaching H&S by putting them at risk (or being prepared to do so) when it was "...reasonably practicable" NOT to do so.

    I am not making this up. The law is there to read; the cases where such decisions have been disputed are there, and the NEBOSH Certificate I hold is still valid.

    Regarding a hazard like this virus, playing games with "small risk" permitting non-payment in the face of authoritative advice and warnings (I agree...where they apply to individual employee circumstances) is NOT an option.

    If the warnings apply (if the employee should self-quarantine in the circumstances given): Heed them; suspend for 14 days (whatever the employee wants to do) and pay in full. There is no other option, for the reasons I have now explained three times, backed by H&S and contract law. 

    ...Or tell me I am wrong, backed by that same law; but not "commercial judgement" or post-event "pragmatism", because that will not absolve the H&S Statutes and a mountain of civil liabilities descending on your head if ONE person is infected due to a misjudgement, and it will not excuse one day's underpayment due to someone who has accepted the authoritative advice given, if accepted in good faith.

    If anyone else can explain it more clearly: Feel free, My case is made.

    P :-)