Covid-19: Employing staff in the care sector

Jo Moseley, a professional support lawyer in the employment team at Irwin Mitchell, explains the key issues providers need to be aware of in the current coronavirus pandemic.

The impact of coronavirus on the UK is unprecedented. Freedoms that we take for granted have been curtailed and we have quickly had to adapt to changes in the way we live, interact and work.

Many public facing businesses have closed and employers have been asked to facilitate home working as part of the government’s programme of social distancing and, where that’s not possible, to come up with creative and flexible options to help people continue to work.

Some workers in the care industry may be able to work from home, but those who provide day to day care obviously cannot.

This article concentrates on the employment issues relevant to employers of care staff or those working in retirement living complexes that have to come into work.

Risk assessments

As an employer you have a duty to protect the health and safety of your staff and separately have duties to the people you are caring for.

Under the Management of Health and Safety at Work Regulations 1999, the minimum you must do is:

• identify what could cause injury or illness in your business (hazards);
• decide how likely it is that someone could be harmed and how seriously (the risk);
• take action to eliminate the hazard, or if this isn’t possible, control the risk.

Coronavirus poses a substantial risk to your staff and, depending on their age, health and other factors could cause significant harm to them. You will also need to consider how they travel to work.

Public transport is still running, but reports show that some services are very overcrowded – which is a major factor in spreading the disease.

You should not expect any member of staff to get onto an overcrowded bus or train and may have to show some leeway around start and finish times to ensure you have appropriate cover to accommodate this.

Coronavirus poses a substantial risk to your staff and, depending on their age, health and other factors could cause significant harm to them.

‘High-risk’ staff

You also need to identify anyone considered to be at high risk of harm if they catch the virus.

The government has published a list and this includes anyone over the age of 70 (even if they are otherwise fit and well), anyone with an underlying health condition and pregnant women.

Your staff may not have shared their medical history with you, or told you that they are pregnant and you should therefore ask them to let you know if they believe they are vulnerable so that you can take steps to protect them.

Guidance for this high risk group has not been updated since the government imposed a lock down on Monday 23 March.

However, it declared this group should socially distance themselves from others (now a requirement for all people) and avoid public transport.

Carers providing day to day personal care to others are not able to socially distance themselves in this way and should be given alternative duties if any are available.

The NHS published guidance which said anyone at high risk would have been be contacted by 29 March and given advice.

Some will be asked to ‘shield themselves and stay at home’ and therefore must not be asked to work.

If it is not safe for a member of staff to come into work, you must ask them to remain at home.

Carers providing day to day personal care to others are not able to socially distance themselves in this way and should be given alternative duties if any are available.

Depending on the nature of your contractual arrangements, you may have to continue to pay them their normal salary, unless they are self isolating on medical advice, or because they, or someone they live with has coronavirus symptoms.

Where that’s the case, they are entitled to statutory sick pay (SSP) and may also be eligible for contractual sick pay (this will depend upon your policy wording).

Pregnant women have special rights. If you do not have any suitable alternative work they can do, or the employee reasonably refuses it, you must suspend them on full pay.

You may be able to ‘furlough’ anyone who has been asked to shield themselves on medical advice.

Under the government’s coronavirus job retention scheme, employers can recover up to 80% of a worker’s wages (subject to maximum of £2,500 per month).

The scheme will not be up and running until the end of April, but payments can be backdated to 1 March 2020.

Same household

Some staff will not want to come into work if it increases their risk of catching the virus where they live in the same household as someone in the ‘high risk’ category.

Unfortunately, the guidance doesn’t address this situation.

Our view is that you must take these concerns seriously – not least because, insisting they go to work and be in close contact with clients who may have the virus, could expose them (and their families) to severe risk.

In these circumstances, it could be a breach of the implied duty of trust and confidence to insist they continue to perform their normal duties. Other options are:

• giving them the option to take holiday if they can’t work from home;
• agreeing a period of paid or unpaid special leave with the individuals;
• prioritising staff in this category when deciding who to furlough;
• carrying out a specific risk assessment to identify the risks associated with the individual continuing to come into work;
• transferring them, if possible, to a different place of work where they can socially distance at work and are not required to take public transport to come into work.

Residential care guidelines

The government has published coronavirus: guidance on residential care provision, which was last updated on 19 March 2020.

It states: ‘If neither the care worker nor the individual receiving care and support is symptomatic, then no personal protective equipment is required above and beyond normal good hygiene practices.’

Given the rapid spread of the virus, you should regularly check the guidance, as personal protective equipment (PPE) may soon be required for all contact.

Residents with symptoms

If a resident in your care home or retirement living complex displays symptoms of coronavirus, you must follow strict guidelines laid down and provide suitable PPE equipment for staff caring for them.

Given the ongoing difficulties in procuring suitable equipment, this will be a challenge.

However, if you can’t provide this your staff could refuse to work because of concerns about their health and safety – and shouldn’t be dismissed or disciplined in these circumstances. They could also resign and claim constructive dismissal if they have two years’ service.

Given the rapid spread of the virus, you should regularly check the guidance, as personal protective equipment may soon be required for all contact.

Self isolation

Any member of staff who displays symptoms of the virus must self isolate for seven days.

If they become unwell whilst at work, you must make sure that they can sit somewhere away from residents and other members of staff until they are able to go home.

Any staff member who has someone in their household who also has symptoms must self isolate for 14 days.

Unless testing becomes more widespread, this is likely to cause staff shortages.

You may therefore need to ask staff to cover additional shifts.

Workers shouldn’t work over 48 hours a week (averaged over a 17 week period) unless they have signed an opt-out.

You’ll need to monitor working hours and step in if someone is doing too much and not getting enough rest.

Anyone who is self-isolating – even if they aren’t actually ill, is entitled to SSP for up to 14 days.

The usual ‘waiting days’ are dis-applied and payment is from day one.
Your organisation will be able to recoup its SSP costs (up to 14 days) if you employ 250 or fewer staff.

We don’t yet know how to do this (the legislation is still going through parliament) and you’ll need to check government websites for further information.

Unfortunately, if you don’t fit that description, you’ll have to meet the costs yourself.

You’ll need to monitor working hours and step in if someone is doing too much and not getting enough rest.

Childcare

Schools have now closed and many parents are juggling work and childcare.

Some schools and nurseries have remained open to look after the children of any key workers who can’t keep their children at home.

However, they are not (to our knowledge) open at weekends, and this may cause problems for some of your staff who work shift patterns and who, in normal circumstances, may have relied on their family or friends to help them.

If staff can’t get into work, then they may be able to take paid special leave.

Continuing to operate care homes and retirement living complexes with elements of care is going to remain extremely difficult during this pandemic. It could go on for many months.

Care providers will have to do their best to cope and employers in the sector will need to keep a close eye on government guidance which is changing every day.