Introduction
FAQ
What should an employer do if an employee recently visited a country where the coronavirus is causing an outbreak of respiratory illness?
The answer will depend on the threat level of the particular country. If the employee has returned from a country that requires self-isolation, the employer must require the employee to stay away from work during the isolation period.
If the employee has returned from a country that does not require self-isolation, the employee may be requested to stay away from work as a precautionary measure. Any local legal requirements should be followed, but, generally, if the employer requests that the employee stay away from work, the employee should be paid.
Is an employer required to pay employees for an absence from work as a result of the coronavirus outbreak?
In many instances, yes.
If an employee is required to self-isolate and the employee is able to work, they should be paid as usual.
If an employee is required to self-isolate and the employee is unable to work (but is not ill), the answer will depend on the relevant jurisdiction. In some countries, like Germany, the employer must pay quarantined employees for the period of isolation. In other countries, such as the United Kingdom, an employer can choose to pay them, allow them to take paid leave or not pay them. If the employer has discretion and chooses not to pay, governmental allowances may be available. For example, in France, pursuant to a 31 January regulation, an eligible employee may receive an allowance in lieu of salary during the isolation period for a maximum of 20 days.
If an employee is ill with the coronavirus, then general sick pay rules in the particular jurisdiction apply.
If an employer asks an employee to stay away from work, then the employer should, generally, pay the employee for this time.
If an employee reasonably refuses to come to work and is not ill, then the employer generally may allow the employee to work from home, take paid leave or not pay them. Consistency on the treatment of these situations should be taken in order to avoid discrimination claims.
Do employees have a right to stay away from work because of a general risk of infection with the Coronavirus?
For many countries, employees that are not ill must report to work. However, there are exceptions, and local law should be considered in each case.
For example, in the United Kingdom, an employer should consider alternative working arrangements (such as working from home) if an employee has a specific concern, for instance having a health condition that makes the employee more vulnerable. However, if an employee refuses to work even after being offered an alternative working arrangement and having no symptoms, the employer will need to consider its response.
As another example, in Germany, without a concrete risk (e.g., infection of a direct team member), employees generally are not entitled to stay away from work because of a general risk of infection.
If there is a genuine suspicion that an employee is infected with the coronavirus, can the employer send the employee home?
Possibly. The answer will depend on the jurisdiction and specific facts.
Many countries impose a duty upon the employer to protect their employees. In this scenario, the duty would be to protect against increased risks of infection to other employees, customers or other third parties.
On the other hand, many countries provide employees with a right to work, and employees cannot be sent home unless local law or agreement allows this.
Either way, employers should keep in mind that an employee may not be discriminated against or harassed because of a medical condition. An employer should also work to prevent any form of discrimination or harassment targeted at employees for any other protected categories, such as national origin or descent. Moreover, in order to reduce the risk of breach of contract, constructive dismissal or discrimination/harassment claims, employers should consider paying employees required to stay away from work.
Do employers have a general obligation to take measures to protect the workforce?
In most instances, yes. An employer’s duty of care requires the company to take appropriate measures to minimize risks in the workplace. Measures should be tailored to the particular circumstances, such as encouraging employees to work from home, limiting in-person work to essential employees, and sending employees home if there is an outbreak in the office. Local legal requirements on what such measures entail must be followed.
By way of example, in the United Kingdom, an employer can fulfill its health and safety obligations to its employees if it follows the Public Health England guidance. Some UK employers are taking a more conservative approach, although this does not require that other employers do so.
In France, employers must take all necessary measures to ensure the health and safety of their employees, including providing information and preventative guidance (e.g., frequent handwashing and avoiding close contact to anyone with a fever or cough), as well as additional accommodations (e.g., increasing the use of telework and providing disposable masks and other protective products).
Likewise, in Germany, employers must take appropriate steps to minimize risks. Appropriate measures must be taken in areas where the coronavirus has occurred as well as the general workplace. Publicizing specific guidance on rules of conduct relating to the virus, providing disinfectants and encouraging personal hygiene are recommended.
May employers require employees to travel on business trips to countries that have been identified by a governmental authority as having a warning level?
Generally, no. For example, in France, an employer must instruct its employees not to conduct business travel to such affected areas. For other areas, a French employer should instruct its employees on safety measures, such as to avoid travel where possible and instead conduct videoconferences; wear masks in airports, trains and buses; and practice systemic hygiene. Likewise, in Germany, an employee is not required to travel to a country where there has been a high number of infections of the coronavirus.
Can an employer prohibit employees from visiting affected areas on vacation or personal time, or for taking part of a mass event outside working hours?
Generally, no. Employers cannot mandate what employees do in their private lives. However, it is usually appropriate for an employer to inform and caution employees on personal travel to affected areas. Employers may be able to ask employees to provide information regarding such personal travel, although an employee is usually not required to provide this information.
Does the coronavirus situation trigger any consultation requirements with employee representatives?
Possibly. Local law, collective agreements and past practice should be reviewed in determining any information or consultation obligations with unions, works councils or other employee representatives.
For example, in France, if the implementation of any prevention measures will require an amendment of the company’s internal regulations, the works council must be consulted. In Germany, consultation is required if any instructions on conduct are implemented. Even if not legally required, employee representatives should be informed throughout the crisis.
Does an employer’s response to the virus implicate any privacy laws or regulations?
It might. Privacy rights are complicated matters for employers and you should consult a privacy lawyer to discuss those issues.
This material is for general information purposes only and should not be construed as legal advice or any other advice on any specific facts or circumstances. No one should act or refrain from acting based upon any information herein without seeking professional legal advice. McDermott Will & Emery* (McDermott) makes no warranties, representations, or claims of any kind concerning the content herein. McDermott and the contributing presenters or authors expressly disclaim all liability to any person in respect of the consequences of anything done or not done in reliance upon the use of contents included herein. *For a complete list of McDermott entities visit mwe.com/legalnotices.
