By Shah Qureshi and Lelde Libeka from Irwin Mitchell's Employment team

Can my employer force me to go to work if I am living in the same household with vulnerable adults?

Although there are some gaps in the guidance, the general view is that your employer should listen to any concerns you may have and should take steps to protect everyone. 

Your employer must undertake a risk assessment to determine whether, by coming into work, you are at risk of catching the virus. Employers have a duty to comply with their health and safety obligations (such as providing you with face masks, gloves, and hand sanitiser)  and will need to follow  recent government guidelines to ensure that social distancing is observed so as to minimise the risk of you contracting the coronavirus.

Under your existing employment rights, if you are an employee, you are already entitled to remain away from the workplace (e.g. stay at home) if – in your reasonable opinion – the prevailing circumstances represent a real risk of serious and imminent danger which you could not be expected to avert. In these circumstances you are protected from being unfairly dismissed (but only if you’re an employee).  However, this protection does not extend to you if you are a ‘worker’ rather than an employee.

This risk is not restricted to you, as an individual employee and your colleagues, but extends to others – for instance, your family or members of the public. 

Recent regulations such as the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 back this up. 

The risks are compounded if you believe that you might be a “spreader”, where you display some mild symptoms, or where your employer has not provided sufficient PPE or otherwise complied with its health and safety duties so as to minimise the risk of contracting Coronavirus (such as face masks, gloves, hand sanitiser). 

So, provided you can overcome the issue of employment status, the protection is there.

The government has also recently updated its Guidance on the Coronavirus Job Retention Scheme and has said that organisations can furlough staff for a number of reasons including where they are shielding in line with Public Health guidance "or need to stay at home with someone who is shielding if they are unable to work from home and  would otherwise have to be made redundant.” 

What if I am concerned about catching the virus whilst on my commute to and back from work?

The government has asked that public transport is only used by key workers. If you do need to commute to work, your employer should put in place the necessary measures to make sure that you are not exposed to the risk of catching the virus whilst on your commute. For example, they could offer you alternate work hours, free car parking, where possible, so that you can avoid using public transport or cover your expenses for using a cab to travel into work and back.

You can nevertheless still possess a reasonable belief that you are being exposed to a serious and imminent danger. It is not enough for the employer to simply disagree with the employee’s assessment of the situation. 

The government guidance states that “employers should take every possible step to facilitate their employees working from home, including providing suitable IT and equipment to enable remote working.” 

If you cannot work from home, government guidance remains that you can still travel for work purposes, provided you are not showing coronavirus symptoms and neither you nor any of your household are self-isolating. If you still do not want to go in, you may be able to arrange with your employer to take the time off as holiday or unpaid leave. Your employer, however, does not have to agree to this.

If you refuse to attend work without a valid reason, it could result in disciplinary action.

Are there any exceptions for vulnerable people?

People considered to be at high risk of being very adversely affected by the virus are:

• Those aged 70 and over - even if they are otherwise fit and healthy
• Pregnant women
• Anyone with an underlying health condition (including those people who are recommended to have the winter flu jab)
• Anyone with profound conditions - such as those with cancer

A full list is available here.

If you have an underlying health condition the government “strongly advises” that you work from home.

If your job is not suitable for home working, then your employer should consider whether you can be temporarily re-deployed to a role that would allow home working for the duration of this crisis.

If working from home isn’t an option then your employer should undertake a risk assessment to identify any additional steps they need to take, such as re-allocating some of your duties or providing you with additional personal protective equipment. 

Some people have an even higher risk of severe illness from coronavirus because of complex health problems. See below.

Can a “high risk” employee be required to come into work if their role can’t be carried out remotely?

The most vulnerable group of people includes:

• Certain types of cancer patients
• Organ transplant patients 
• People with certain genetic diseases
• People with serious respiratory conditions such as cystic fibrosis and severe chronic bronchitis
• People receiving certain drug treatments which suppress the immune system
• Pregnant women with heart disease

If you are in this group, you must follow new NHS guidance which requires you to "shield and stay at home" for at least 12 weeks and you will probably have received a letter explaining this. Shielding is used to protect extremely vulnerable people from coming into contact with coronavirus. Please note that this period of time could change. 

Your employer is responsible for the health and safety of their staff and shouldn’t insist you come into work against medical or government advice. If you can work from home, your employer should continue to pay you. However, if you can’t work from home your employer may treat your absence as a type of suspension with pay. They could also furlough you under the government's Coronavirus: Job Retention Scheme (but not if you are receiving SSP) so we recommend that you discuss this with your employer.

Your employer cannot insist that you come into work. If it does, you can (and should) say no. Any employer who asks staff who are shielding to come into work will damage the implied duty of trust and confidence. If you then resign and have two year’s continuous employment, you will be able to bring a claim for constructive dismissal.

What is the guidance for those living in the same household with people from the high-risk groups or with somebody who is self-isolating due to coronavirus symptoms? 

If you are shielding or required to stay home due to someone in your household shielding and you are unable to work from home, you should speak to your employer about whether they plan to place you on furlough rather than you take paid annual leave or unpaid leave.

The NHS household guidance is for individuals who are living with someone suspected of the virus and doesn’t cover anyone who doesn’t have symptoms (although of course that doesn’t mean that they don’t already have it). 

It states “If you can, move any vulnerable individuals (such as the elderly and those with underlying health conditions) out of your home, to stay with friends or family for the duration of the home isolation period. If you cannot move vulnerable people out of your home, stay away from them as much as possible.”

Your employer might want to enquire about how much space you have in order to protect yourself or those who are vulnerable living in the same household with you if they otherwise feel it is safe for you to come into work.

Please see the ACAS guidance on homeworking for employees and employers for more information.

What if I am pregnant?

If you are pregnant you are strongly advised to work from home. If your job is not suitable for home working then your employer should consider whether you can be temporarily re-deployed to a role that would allow home working for the duration of this crisis, on full pay.

Local government employers have already acknowledged that in some cases they will need to allow staff who can’t work from home to stay at home on full pay. 

Once your employer is aware that you are pregnant, they should carry a risk assessment to identify any additional steps they need to take to protect you from all risks identified. Ordinarily, this might include allowing you to start later to avoid busy times on public transport etc., but in context of coronavirus, your employer would have to do much more - particularly now when the government has imposed strict conditions to enforce social distancing. 

 If they can’t protect you from risks, they must:

• Alter your working conditions or hours of work to avoid any significant risk.
• Where that’s not possible, offer you suitable alternative work on terms that are not ‘substantially less favourable'.
• Where suitable alternative work is not available, or you reasonably refuse it, you may have to be suspended on full pay

Can I ask to start my maternity leave early?

No – not unless you are absent from work on account of a pregnancy related illness which starts (or continues) after the beginning of the 4th week before your expected week of childbirth.

Pregnant women have been advised to socially distance themselves to avoid catching the virus. It’s not yet clear if this is enough to trigger ordinary maternity leave but it could be if it’s treated as sickness related absence.

Does my employer need to carry out risk assessment if I am working from home? 

Your employer has a duty of care towards all their employees, and the requirements of the health and safety legislation apply to all homeworkers. 

If you are working remotely, on anything other than a temporary basis, your employer will need to ask you to do a quick risk assessment to make sure your working environment is safe. The main equipment needed includes a table to work at, good lighting and somewhere to sit. Your employer is only required to do what is ‘reasonably practicable’ so everything doesn’t have to be perfect. The HSE has a checklist you can use to ensure safe working environment at home.

Your employer is responsible for the equipment it supplies, but it is your responsibility to rectify any flaws in the home highlighted by the assessment. Once the home workplace has passed the assessment, it is your responsibility for keeping it that way.

Please see the ACAS guidance on homeworking for employees and employers for more information.

Am I entitled to full pay or just SSP, if I am self-isolating?

Currently anyone who doesn’t have symptoms but lives with someone who does must self-isolate for 14 days. If you are not ill and are self-isolating in line with government guidance and can work from home your employer should pay you as normal.

In most cases, if you are unable to work due to coronavirus symptoms, you will be entitled to SSP from the first day of your absence. You may also be entitled to contractual sick pay, but this will depend on the wording of your sick pay policy and how it has been applied to others. If your illness is unrelated to coronavirus, then your employer’s usual rules apply.

However, it is important to distinguish between social distancing and self-isolating as SSP is only payable to those self-isolating because of coronavirus symptoms. If you are shielding in line with government advice you are also entitled to SSP.

What if I am choosing to self-isolate because I am frightened of contracting the disease, or spreading it to others in my household?

If you can work from home, your employer should pay you as normal. 

Sometimes this will not be possible, as not everyone can work from home. Certain jobs require people to travel to, from and for their work – for instance if they operate machinery, work in construction or manufacturing, or are delivering front line services.

If it’s reasonable to expect you to come to work (and that will be judged in context including how easy it is for you to travel if you are not a key worker) your employer could treat your decision not to as unauthorised absence and refuse to pay you. We recommend that you take advice.