Coronavirus Outbreak Q&A

We're getting lots of questions from employers about how they should handle HR issues around Coronavirus. It's a fast-developing situation, and government guidance is updated daily, but here are our answers to the most common questions. 

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What is the Job Retention Bonus?

The Job Retention Bonus was announced by Chancellor Rishi Sunak on 8th July. Employers will receive a one-off payment of £1,000 in respect of each previously-furloughed employee they keep  continuously employed through to 31st January 2021.

To qualify, employees must be paid at least £520 each month and remain in continuous employment.

Further details of how the scheme will work will be announced by the end of July.

What is the Coronavirus Job Retention Scheme?

The Coronavirus Job Retention Scheme was announced on Friday 20th March. 

It will reimburse employers up to 80% of wages for employees they have to lay off temporarily or make redundant due to the business conditions caused by the Coronavirus.

The maximum wages covered by the scheme are £2,500 per month. The government rebate will cover employers' NICs and minimum pension contributions in addition to this.

Changes to the Scheme came into effect as from 1st July. Please register for free access to MentorLive for further detail.

What is flexible furlough?

The Job Retention Scheme was changed from 1st July. From that date, employees can work any number of part-time hours for their employer and be put on furlough for the remainder of their normal working hours.

Employers must pay employees their normal rate of pay for the hours they work but can claim under the Job Retention Scheme for the hours the employee is on furlough.

What other changes to the scheme are happening?

From 1st August, the amounts employers can claim under the Job Retention Scheme are progressively reducing until the scheme closes on 31st October.

  • From 1st August, employers will no longer be able to claim employer national insurance contributions and minimum auto-enrolment pension contributions
  • From 1st September, the amount of pay that can be claimed reduces to 70% of normal earnings
  • From 1st October, the amount of pay that can be claimed reduces to 60% of normal earnings

Importantly, employers must maintain wages paid to employees at a minimum of 80% of normal earnings. 

What businesses can apply?

Almost all businesses can apply. The scheme will be particularly relevant to businesses in the sectors ordered to close (principally retail, hospitality and leisure), but can apply in any sector.

Public sector organisations and businesses that receive public funding for staff costs are unlikely to be eligible.

Is it effective immediately?

Yes, and it's also backdated to 1st March.  This means that it can cover employees a business has temporarily laid off or made redundant since 1st March - if those people are re-hired by the business.

Are any employees excluded?

You can only claim for employees that were on your PAYE payroll on or before 19 March 2020 and which were notified to HMRC on an RTI submission on or before 19 March 2020.

From 1st July, the scheme is only available to employees who have previously been placed on furlough for at least 3 weeks prior to 30th June, and to any employees who are returning from long-term statutory family leave.

Does it apply to employees on zero hours' contracts?

Yes. Their earnings are based on average earnings (see “how is pay calculated” below).

Are workers eligible?

Yes - the option to furlough applies to any type of contract, including a zero-hours or temporary contract - as long as the person was on the employer's PAYE payroll on 19 March 2020.    

Can employees who I have made redundant benefit?

Yes. If an employee was made redundant between 28 February 2020 and 19 March 2020, they can be re-hired and immediately placed on furlough. This applies even if you do not re-employ them until after 19 March.

Will they have to pay back their redundancy pay?

If the person is re-hired and this is backdated to the day after they left the business, it seems fair that they should be asked to repay their redundancy pay. The government has given no details of whether this is required or how this is expected to work in practice. 

These employees would qualify for redundancy pay again if they were to be made redundant in the future and continuous employment rules would mean this would be calculated on their full length of service (not just from the time they were re-engaged) - so it seems only fair that they should repay any redundancy money they have already been paid.   

How will employees receive their money?

They will receive wages through employers' normal payroll arrangements, subject to the usual deductions. The employer is reimbursed via HMRC.

How quickly are grants available?

The online service became available on 20th April 2020.  Payments are normally made by HMRC within 4 to 6 working days from when the claim is made on the online portal.  

Do I just pay employees 80% of their normal pay?

Even though the government will only reimburse 80% of an employee's wages, it is important to note that the employer is still liable for 100% of wages unless the contract of employment allows for this to be varied. Although the government guidance states 'you can choose to top up your employees' wages, but you do not have to', a reduction in pay cannot be imposed. An employer cannot amend terms of a contract of employment, including pay, without the employee's agreement. 

If an employer cannot afford to make up the difference it may be possible to renegotiate the employment contract to allow for a temporary reduction of pay to 80% during the furlough period. This agreement should be confirmed in writing, specifying the period in which the reduction in pay will be applicable.  

How is pay calculated?

For employees with a salary or regular pay, it's based on gross salary in their last pay period prior to 19th March.

*If, based on previous guidance, you have calculated your claim based on the employee's salary as at 28 February 2020 (and this differs from their salary in their last pay period prior to 19 March 2020) you can choose to still use this calculation for your first claim.

For employees on variable pay or zero hours contracts, it's based on the greater of:

•             The same month's pay from last year; or
•             Average monthly earnings from the 2019-2020 tax year.

Does the 80% grant cover commission and bonus payments? 

Discretionary bonus, commission and non-cash payments are excluded.

However, the claim can include “any regular payments you are obliged to pay your employees”. Government guidance states that this includes “past overtime”, fees and compulsory commission payments. 

Does the employer still have to pay commission and bonuses to employees?

Bonuses and commission payments that were earned prior to the furlough period commencing might then become payable during the furlough period. As this is a contractual payment, the employer would still have to pay this in addition to the agreed wages to be paid during the furlough period, and not expect to claim the bonus or commission payments back.

How is pay calculated for employees who have been on statutory leave prior to furlough?

Statutory leave includes maternity leave, paternity leave, shared parental leave, adoption leave, sick leave and parental bereavement leave.

Claims for full or part time employees returning from statutory leave after 28 February 2020 should be calculated against their salary, before tax, not the pay they received whilst on statutory leave.

What if 80% of pay takes pay below the National Minimum Wage / National Living Wage?

The government has confirmed that the NMW / NLW does not apply to furloughed workers.

There is some work to do and I would like to rotate it among the workforce - can I do this?

Under the Flexible Furlough scheme, you can continue to rotate periods of furlough and periods of work among your employees and there is no longer a minimum period you can place an employee on furlough (under the scheme that applied until 30th June, there was a 3 week minimum furlough period).

Take care that you don't place more employees on furlough at any one time than the maximum number you claimed for prior to 30th June.

Does it apply to employees who are taking leave due to school closures?

Yes. Employees who are unable to work because they have caring responsibilities can be furloughed.

Does the scheme apply to vulnerable workers who are following government advice to self-isolate at home?

Yes. Currently “extremely vulnerable” people have been told to “shield” at home - these employees may be placed on furlough.  

Are employers still required to pay NIC and pension contributions? Will this be covered by the JRS grant?

Employers will receive a grant from HMRC to cover the lower of 80% of an employee's regular wage or £2,500 per month, plus the associated employer national insurance contributions and minimum automatic enrolment employer pension contributions on that subsidised wage.

From 1st August, employers will no longer be able to claim employer national insurance contributions and minimum automatic enrolment employer pension contributions.     

Is there a qualifying length of service to be eligible for the scheme?

No. But to be eligible, the employee must have been on the payroll on 19 March 2020.  If they were hired later, they are not eligible.  Anybody who was on the payroll on 28 Feb and has since been made redundant can be rehired and put on the scheme.

From 1st July, only employees who have previously been furloughed, or who are returning from long-term statutory family-related leave, are eligible to be furloughed.

Can I furlough employees who are self-isolating and receiving sick pay?

An employee cannot receive SSP and be furloughed at the same time. It is one or the other.  Government guidance confirms that once the self-isolation period has ended (which will usually be either 7 or 14 days), that an employee can then be furloughed.  

The scheme is not intended for short-term absences due to sickness, and therefore self-isolation should not be a consideration in deciding whether to furlough an employee.

However, employees who have been advised by the NHS to "shield" are entitled to join the furlough scheme.  

Can employees who are on Long Term Sickness absence be furloughed?

Employers can decide whether to furlough these employees or not. Employees cannot be receiving SSP and furlough pay at the same time, it can only be one or the other. With the employee's agreement, an employer can stop paying any continuing SSP entitlement and instead put the employee on furlough and pay an agreed rate, which should be at least 80% of normal pay.

What if an employee becomes unwell during a furlough period?

An employee cannot receive SSP and be furloughed at the same time. The employer can choose to end the furlough period and revert to paying SSP if an employee becomes unwell whilst furloughed.  However, there is no obligation to do so and the employer could instead opt for the employee to remain furloughed and continue to pay the employee the agreed furlough rate of pay.  

Please note that if an employer decides to move the employee on to SSP that they will no longer be able to claim for the furloughed salary. Employers are required to pay SSP themselves, although may qualify for a rebate for up to two weeks of SSP. It is not possible for employers to claim monies back from both the Job Retention Scheme and the SSP rebate scheme for the same employee for the same period of time.

If an employee is entitled to full Company Sick Pay and meets the relevant criteria, this should be paid at full rate. It is likely that a furlough grant can be reclaimed via the CJRS as is the case for other enhanced payments. Alternatively, the employer could enquire if the employee would prefer to remain on furlough during this time, which would therefore not affect their sick pay entitlement. 

Can an employee still take annual leave during a furlough period? And can employee be forced to take annual leave during the same period?  And if so, will the employer still be able to claim back 80% of normal salary?

Government guidance has confirmed that employees can take annual leave during furlough. If an employer wants to require employees to take annual leave during a furlough period, they can do so, provided that the employer gives the required notice. 

The employee should be paid normal salary for holidays taken during the furlough period. The furlough grant will only cover 80% of normal salary and employers will be obliged to fund the additional payment. 

What if employees have been unable to take their full annual leave entitlement by the end of the year?

On 27th March the Government amended the Working Time Regulation to allow carry forward of up to four weeks accrued holiday leave. This will allow leave to be taken sometime in the following two years but only where the holiday leave was not taken in this current holiday year as a result of the effects of coronavirus on the worker, the employer or the wider economy or society.

Can employees whose salaries are funded by public bodies be furloughed?

Where employers receive public funding for staff costs, and that funding is continuing, the government expects employers to use that money to continue to pay staff rather than furloughing them. This also applies to non-public sector employers who receive public funding for staff costs.

Organisations who are receiving public funding specifically to provide services necessary to respond to COVID-19 are not expected to furlough staff.

Can I make redundancies whilst employees are furloughed?

Yes.  Although the purpose of the scheme is to avoid redundancies, this might be unavoidable for some businesses and there is no rule to say an employer cannot carry out redundancies whilst employees are also furloughed.   

Please note - if an employer is proposing to dismiss 20 or more employees within a 90 day period - collective redundancy consultation obligations will apply.  This includes having to consult for a minimum of 30 days (or 45 days if dismissing 100 or more employees) and to elect appropriate employee representatives or consult with any recognised trade union. 

Employers should take advice before seeking to carry out redundancies.

Do I need to get consent from employees to join the furlough scheme?

Yes. Changing an employee's status to 'furloughed' would constitute a change to terms and conditions and therefore agreement would need to be reached.

It is important employees are provided with necessary information to decide if they wish to join the scheme - this will be especially important if an employer intends negotiating a reduction in pay (e.g. 80% of basic salary) during the furlough period.  

If an employer wishes to impose the furlough scheme onto employees then further advice should be taken.  It is important to be aware that collective redundancy consultation obligations could also be triggered for any employer intending to force changes to an employee's terms and conditions, and where this affects 20 or more employees.  

Do I need to keep any evidence that employees agreed to be furloughed?

Once the employee has agreed to be furloughed, employers should send a furlough confirmation letter to the employee (this can also be emailed).

This letter should confirm that agreement has been reached and outline the specific terms, for example:

  • date of the change to furlough status
  • how long the furlough period will last (or approximate period if unsure)
  • what the payment arrangements are

 A record of this communication must be kept for 5 years.

What should I do if the Job Retention Scheme ends but there is insufficient work available for employees?

Before the Job Retention Scheme comes to an end, employers should assess their circumstances and decide whether or not employees are able to return to their duties. If not, it may be necessary to consider making redundancies.   

Please seek legal advice if you find yourself in this situation.

Can I claim for employees who transferred from another business?

Employees of a business which transferred after 28th February 2020 are eligible for the scheme, if either the TUPE or PAYE business succession rules apply.   

Where can I find further information?

Further details of all the support available to businesses are here.

Who qualifies as a “key worker”?

The government has published a list of key worker job roles. This applies to England and the position in Scotland and Wales may differ. Details are here.

The aim is that key workers will be able to continue to send their children to school and so should not require them to stay away from work for childcare.

What evidence of sickness does an employee need to give?

An employee may self-certify as sick for the first seven days of sickness.

After seven days, for sickness due to coronavirus, employees may use a new, online service to obtain an electronic “coronavirus isolation note” which they can email to their employer. This acts like a “fit note”.

The “coronavirus isolation note” can also be used by an employee who has been advised to self-isolate due to a member of their household having coronavirus symptoms.

Should I pay a worker who self-isolates?

From 13th March SSP is payable from the first day an employee self-isolates, for the full period of time off, if the employee is advised to self-isolate by following government guidance.  This includes those advised to self-isolate because someone in their household has symptoms. But it does not include employees who are in a period of quarantine following return from abroad.

There is now an online “isolation note” scheme which allows employees to provide the appropriate evidence electronically.

It may be possible for workers who are self-isolating as a precaution to work from home and receive their normal pay. 

Where can I find a risk assessment covering Coronavirus?

An example risk assessment can be found in our Covid-19 hub under maintaining and re-opening business operations. You need to carry out a specific risk assessment for your operations. Once this has been completed, the UK Government expect you to share the results of the risk assessment with your workforce. If possible, you should consider publishing the results on your website (it is expect that all employers with over 50 workers to do so). In addition you need to display the completed “staying COVID-19 Secure in 2020” poster illustrating your premises are Covid-19 secure.

What do I need to do to ensure my employees can return to work safely?

You are required under Health and Safety Law to conduct suitable and sufficient risk assessments covering risks to the workforce and others who could be affected by your operations. These risks must be planned, organised, controlled, monitored, reviewed and communicated to the workforce and others. For those with 5 or more employees, these should be recorded.

If your company has been closed or working at reduced capacity during the UK lockdown period then you should assess the risks to your staff and other persons affected by your work before restarting your work operations. Your assessment might include checking that the buildings are safe and that work equipment and services are safely switched back on and commissioned.  You may also need to consider a return to work health questionnaire for your employees.

If you already have risk assessments in place, these should be reviewed in light of this new risk and suitable control measures implemented, dependent on your industry. We have sector specific checklists that will help with carrying out your risk assessment review and in meeting the UK Government sector guidance. For advice to businesses in other nations of the UK please see guidance set by the Northern Ireland Executive, the Scottish Government and the Welsh Government.

How can I implement social distancing, particularly for travelling to and from sites and open plan offices?

As well as the practical advice to reinforce hand hygiene measures, the 2 metre distancing rule, use of barriers and 'one in one out' systems and other measures the UK Government has produced Sector specific guidance on social distancing in the workplace during coronavirus (COVID-19).

 Where social distancing cannot be safely adhered to and the work is essential, you should consider additional controls such as face coverings.  If the journey is essential, such as travel to work, and there is no option but to share a car with people who are not part of the same household, journeys should be shared with the same individuals and with the minimum number of people at any one time.

Where employees have to share vehicles, they should face away from each other and the vehicle should be kept well ventilated, touch points thoroughly and regularly cleaned (wearing gloves and standard cleaning products) with to reduce the risk of transmission.

What should I do if an employee at work begins to show COVID-19 Symptoms?

If an employee at work begins to show COVID 19 Symptoms, the workplace does not necessarily have to close. As part of your risk assessment companies should explore how to respond should anyone develop symptoms while at work, including whether it is possible to identify any particular parts of the site the individual may have accessed or equipment used while symptomatic.

If an employee becomes unwell in the workplace with coronavirus symptoms, they should:

  • Tell their employer immediately and go home immediately
  • Avoid touching anything before they leave
  • If they cough or sneeze into a tissue, put it in a bin and dispose of it appropriately
  • Use a separate bathroom from others, if possible

The employer should then ensure that the any work area / machines / equipment and touchpoints in any communal areas that the employee has been in direct contact with should be immediately cleaned following the relevant guidance.

Advice to the employee showing symptoms - If the unwell employee lives alone, they must self-isolate for 7 days. If they live with others and are the first to have symptoms, they must self-isolate for 7 days. Everyone else in their household must self-isolate for 14 days. If anyone else in the household starts displaying symptoms, the person with the new symptoms must self-isolate for 7 days. This is regardless of where they are in the 14-day isolation period. They can get more advice or help from NHS 111

Do we need to report Covid-19 under RIDDOR?

The Health and Safety Executive gives guidance on RIDDOR reporting of COVID-19. In summary the guidance states;

 “You must only make a report under RIDDOR (The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013) when: 

  •  an unintended incident at work has led to someone's possible or actual exposure to coronavirus. This must be reported as a dangerous occurrence.
  • a worker has been diagnosed as having COVID 19 and there is reasonable evidence that it was caused by exposure at work. This must be reported as a case of disease.
  • a worker dies as a result of occupational exposure to coronavirus.”

 It is useful to understand non-reportable examples

 o   When COVID-19 is suspected but not confirmed

 o   When COVID-19 has been verified by a registered medical practitioner but it was not contracted via work-related exposure or there is no reasonable evidence that it was contracted at work.

 o   The lost time due to self-isolation for suspected but not confirmed COVID-19

 As you can see deciding on whether an event is reportable or not can be complex, relying on reasonable evidence on whether this is an occupational exposure or not. We would always advise that you consult with the Mentor H&S service.

What measures could I take to ensure social distancing when work commences again?

As well as the practical advice on working from home, hand washing, the social and physical distancing rules, use of barriers and 'one in one out' systems and other measures  the UK Government has produced Sector specific guidance on social distancing in the workplace during coronavirus (COVID-19). For advice to businesses in other nations of the UK please see guidance set by the Northern Ireland Executive, the Scottish Government and the Welsh Government.

What should I do if a worker has had coronavirus but is now over it?

UK Government advice is that if the worker has been symptomatic i.e. showed symptoms of Covid-19 and has been off-work, then they may end their self-isolation after 7 days. The 7-day period starts from the day when they first became ill.

If they live with others, then all their household members who remain well may end their household-isolation after 14 days. The 14-day period starts from the day illness began in the first person to become ill. Fourteen days is the incubation period for coronavirus (COVID-19); people who remain well after 14 days are unlikely to be infectious and can return to work. For advice to businesses in other nations of the UK please see guidance set by the  Northern Ireland Executive, the Scottish Government and the Welsh Government.

Do I need to provide Delivery Drivers with access to welfare facilities?

All drivers must have access to welfare facilities in the premises they visit as part of their work. We are hearing reports that some drivers are not being allowed to use welfare facilities when they deliver. Preventing access is against the law, equally it's not the sensible thing to do. Businesses who already provide reasonable access to toilets and handwashing facilities should continue to do so. With the latest advice for hands to be washed regularly, failure to allow access to welfare facilities may increase the risk of the COVID-19 infection spreading.

Whilst working on a construction site how do we manage task specific elements where social separation is not practicable?

The UK Government has published construction specific guidance during this pandemic, additional guidance has also been provided to the industry through the Construction Leadership Council 'Site Operating Procedures - Protecting Your Workforce During Coronavirus (Covid-19)

Public Health England guidance states “where it is not possible to follow the social distancing guidelines in full in relation to a particular activity, you should consider whether that activity needs to continue for the site to continue to operate, and, if so, take all the mitigating actions possible to reduce the risk of transmission. The H&S requirements of any construction activity must not be compromised at this time. If an activity cannot be undertaken safely it should not take place.”

For advice to businesses on social distancing in other nations of the UK please see guidance set by the Northern Ireland Executive, the Scottish Government and the Welsh Government.

Has there been any relaxation of fire safety law in the workplace during the COVID-19 pandemic?

No, fire safety law i.e. The Fire (Scotland) Act 2005 (Scotland) & The Regulatory Reform (Fire Safety) Orders 2005 (England and Wales)is still in force and there is currently no relaxation. It is the duty of the Responsible Person to ensure that during the COVID-19 pandemic, suitable fire control measures remain in place.

If our building has been closed and we're in the process of reopening it, what preparations should we make in relation to fire?

It is important to ensure that all the fire safety measures in the building are in place. Carry out a review of the fire risk assessment, ensuring that your COVID-19 measures do not compromise fire safety. For example do you have enough fire wardens if you have split your shifts? Is the fire alarm and detection system maintenance up-to-date? Has the means of escape been compromised, etc?

How Mentor could help

If you are an existing Mentor customer, you can visit MentorLive where we will host a range of tools, templates and guidance to help you identify key priorities and take specific actions to mitigate the impact of COVID-19 on your people and your business. We will be regularly adding materials to MentorLive so please be sure to keep visiting.   

If you are not an existing Mentor customer and would like to talk about how we could help you and your business call us today on 0800 074 8151. Customers with hearing and speech impairments can contact us on Next Generation Text Service (NGTS) 18001.  Please note that Mentor's services incur a cost. 

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