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The Coronavirus Act 2020: What employers need to know

Emergency legislation has been rushed onto the statute books in an attempt to bolster the UK’s response to the extensive challenges posed by…

Emergency legislation, in the form of The Coronavirus Act 2020, has been rushed onto the statute books in an attempt to bolster the UK’s response to the extensive practical and economic challenges posed by coronavirus.

It enables action in five key areas namely; increasing the available health and social care workforce; easing the burden on frontline staff; containing and slowing the virus (through powers to limit unnecessary social contacts and disperse gatherings); managing the deceased with respect and dignity; and ‘supporting people’.

The key issues are summarised below.

The Coronavirus Act: The detail

As might be expected from genuine emergency legislation, the Coronavirus Act is a real mixed-bag of provisions touching on a very broad range of policy initiatives.

The Act contains relatively little of direct relevance to employers, but those provisions that do impact employment law are important. Most notably the Coronavirus Act:

  • Temporarily suspends the rule that means SSP is not paid for the first 3 days of any period of absence. This means that SSP will be payable from Day 1. It appears that this applies only where incapacity for work is related to coronavirus. This measure has retrospective effect to 13 March 2020.
  • Enables employers with fewer than 250 employees to reclaim SSP paid for sickness absences relating to coronavirus during the period of the outbreak. Again, this measure will have retrospective effect to 13 March 2020.
  • Introduces a number of employment measures specific to the NHS, to allow NHS employers to ‘staff up’ quickly and effectively to meet the peak in demand caused by coronavirus. These include:
    • Powers to emergency register recently retired healthcare professionals and final-year students (such as nurses, midwives and paramedics) to bolster the existing NHS workforce.
    • The suspension of the rules limiting the working time of recent retirees returning to healthcare roles, along with rules on abatements on the draw-down of NHS pensions (to allow retired staff who have already returned to work to increase their commitments without having their pension benefits suspended).
  • Puts in place a framework to enable employees and workers to take ‘Emergency Volunteer Leave’ in blocks of 2, 3 or 4 consecutive week’s statutory unpaid leave. This is intended to encourage volunteers to support the delivery of health and social care services, for example through voluntary work with the elderly or other vulnerable members of society. A UK-wide compensation fund will be set up to allow compensate volunteers for expenses and lost earnings at a flat rate. The new regime applies for a “volunteering period” of 16 weeks only following the Act coming into force, although the Act states that further “volunteering periods” of 16 weeks or less may be designated in future. Employees may be absent from work only once in each “volunteering period” and must produce an Emergency Volunteering Certificate from the relevant authority (such as an NHS Commissioning Board or local council) to confirm that they have been accepted as a volunteer. All terms and conditions of employment (except those relating to pay) will apply during any period of leave, and employees will have the right to return to the same job. The Act creates new protection for employees prohibiting them from being subject to detriment for taking or seeking to take emergency volunteering leave. It does not appear from the legislation that employers have any specific powers to refuse a request for leave for these purposes, although the employee is required to give 3 working days’ notice. Notably, employees who work for very small employers (with fewer than 10 employees in total) are not eligible to be emergency volunteers.

Comment

Government guidance stresses that the measures in the Coronavirus Act are intended to be temporary, and “will only be in place for as long as required to respond to the situation”. However, the impact of the changes is likely to be felt very quickly.

NHS employers will already be deeply immersed in the process of broadening recruitment to students and recent retirees, alongside the staffing and scheduling pressures caused by a huge surge in demand and an increase in staff absence (due to sickness or self-isolation). If you require any advice or support at this challenging time, our specialist healthcare employment advisers would be happy to assist you.

The changes to sick pay are likely to be controversial. Now that SSP is no longer government funded, the extension of sick pay to Day 1 is likely to hit hard larger employers (who do not qualify for reimbursement) at a time when absence levels are far higher than normal and productivity will inevitably have dipped. Smaller businesses by contrast will welcome the financial lifeline offered of SSP reimbursement (although it may be some be some months before effective systems are set up to enable this to take place).

The introduction of Emergency Volunteering Leave has not so far been widely reported in the media. However, Health Secretary Matt Hancock’s recent call-to-arms to join the "NHS Volunteer Army" received an overwhelming public response, pushing the issue into the headlines.

Employees may be reluctant to step away from their permanent roles (especially without pay) at such an uncertain time. However, be prepared to receive requests for this new type of leave, and contact us if you require support.

Ben Daniel is Head of Employment, Pensions and Immigration at Weightmans LLP. If you have any questions, please do not hesitate to contact Ben at ben.daniel@weightmans.com or speak to your usual Weightmans advisor.

The full text of the Coronavirus Act is available online here.

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