By Kevin Charles, consulting barrister at Crossland Employment Solicitors
It’s reported that up to 10% of people suffering from Covid-19 can take at least three weeks to recover, with a quarter of a million of people in the UK thought to experience symptoms for 30 days or more. Known as ‘long Covid’ many are too ill to work or experience significant relapses in symptoms, significantly impacting many SMEs who are facing challenging economic times due to the Pandemic.
So, where do employers stand on sick pay and lending support if their employees are struggling with long Covid?
Short and long-term sick leave support
Firstly, talk to the employee to find out how poorly they are. This will give you an idea of the length of time they’re likely to be off sick and what support the business, if any, can provide. Can the business refer the employee to a specialist such as an Occupational Health specialist, if appropriate? Will you need to work out a phased return plan if they’re likely to be off sick for many weeks or months to help support them back into work?
SSP
In terms of pay, any employees who are ill, self-isolating or ‘shielding’ for at least four days in a row including those suffering from long Covid, are entitled to statutory sick pay (SSP) of £95.85 a week for up to 28 weeks, paid by the employer. At the end of SSP, an employee must apply for Universal Credit or Employment and Support Allowance to help with living costs.
Many employers also pay company sick pay, which is typically full pay for a set number of weeks or months followed by half pay for a certain period depending on the person’s employment contract and company policy.
Employers that try to exclude the effects of ‘long Covid’ from company sick pay entitlement would very likely face a claim for breach of contract or constructive dismissal, if an employee were to resign and pursue a claim of unfair dismissal.
Given the potential impact of ‘long Covid’ on a business, employers should consider ways to militate its effects.
Managing the impact of ‘long Covid’
All employers are under a statutory legal obligation to provide a safe place of work and have a general duty of care towards their employees. This would include taking reasonable steps to prevent employees from becoming sick or being exposed to health risks whilst at work.
Employees also have a separate statutory duty to take reasonable care of their own health and safety, and that of others, which would include their colleagues and co-workers.
However, whether these legal duties would extend to an employer being able to insist that an employee have a flu jab or Covid-19 vaccine, when or if one becomes available, is a moot point, and would require a careful balance between what is a ‘reasonable’ step in providing a safe working environment against respect for the employee’s rights and personal beliefs.
Undoubtedly, a flu or Covid-19 vaccine jab would be an invasive procedure, to which many employees may legitimately object for personal reasons or beliefs. So, to justify it being mandatory, an employer would need to have a very good reason that it was necessary and proportionate, taking into account the nature of the employee’s role, the employer’s business and the workplace.
The reasons for a mandatory vaccination for employees working in the healthcare sector and with elderly and vulnerable groups would be far more compelling and justifiable than for an employee working in a call centre with little face-to-face public contact. In implementing any such policy an employer would also need to take account of and make adjustments for employees who were unable to take a vaccination jab, for example, due to medical reasons, disability, allergies or religious beliefs.
If an employee refused to have a vaccination jab, an employer could not force them to do so but would be left with the option of taking disciplinary action, if appropriate. This could include dismissal or redeployment, perhaps to a department with no patient/public contact if feasible.
At present many employers, particularly those in the healthcare sector, offer employees the opportunity, voluntarily, to have an annual winter flu jab; encouraging them without making it mandatory.
However, in the current climate, with the impetus to protect patient and public health and limit the impact of Covid-19, the calls for mandatory vaccination in the NHS at least, is growing. While it would be reasonable for most employers outside of the healthcare sector to make voluntary flu vaccinations available to employees, to do so on a mandatory basis maybe a step too far.
Importantly, is keeping your workplace Covid-19 safe. But should one of your employees suffer long Covid, keep in touch, lend support and, when ready, agree a phased return to work that helps both your employee and business get back on its feet.
