The Care Sector and Coronavirus – An Employer’s Legal Duties During The Covid-19 Pandemic

By Charlotte Farrell, employment solicitor at Paris Smith

The residential nursing care sector has been in the news a lot recently, with a clear focus on a lack of PPE in the sector. There is mounting concern amongst those working in this industry that they are being let down by the system and, in some cases, their employers and that more needs to be done.

In this article we examine the legal duties for employers within the residential nursing care sector and what they can do to meet them during these unprecedented times.

What are the general health and safety obligations on employers during this crisis?

The normal rules on health and safety in the workplace continue to apply during this pandemic. Both criminal and civil law apply to workplace health and safety. Employers have an obligation to protect their workers and others from getting hurt or ill as a result of their work. Failure to comply with these obligations could attract action from the Health and Safety Executive (HSE) or local authority under criminal law or a compensation claim by the employee for negligence under civil law

Employers therefore need to make sure they continue to follow all their normal health and safety rules. This includes but is not limited to appointing a competent person to manage health and safety, preparing and following a health and safety policy, maintaining complete first aid kits and staff trained in first aid, displaying the legal poster, providing the correct facilities for staff and providing training on their health and safety obligations. The key point during this pandemic will be to make sure that risk assessments required under the Management of Health and Safety at Work Regulations 1999 are kept up to date and regularly reviewed and acted upon, especially where that means changing the course of action to protect staff.

What are the specific obligations around providing PPE to staff, especially face masks, given the current shortage?

Distinct from the guidance for those working in hospital settings, the current guidance from Public Health England (correct as at 7 April 2020) states that residential care homes only need to provide PPE face masks for people to wear when in close personal contact with patients who are suspected/confirmed cases of coronavirus or for those who are cleaning an area that an ill person has been in if there are visible bodily fluids. The guidance also indicates that those with suspected cases should be kept in isolation and those caring for people with symptoms should not (where possible) also look after those who don’t have symptoms.

The Care Quality Commission has also confirmed that all visits by friends and family must stop and there must be hand sanitiser and hand washing facilities available by the entrance for any medical staff or couriers who need to access the building.

These are the minimum guidelines care homes are required to follow. If a care home is meeting this requirement it is likely that they will meet their health and safety obligations in these areas; however, that will not necessarily stop employees raising concerns or feeling worried that they are not using PPE for all tasks.

What other practical steps can employers take to mitigate the risks their staff are exposed to?

It would be wise for care homes to take as many additional steps as they can to ease the concerns of staff and help protect all those in the care home setting; however, these are not strictly legal requirements. Steps may include regular briefings with staff, extra cleaning, extra hand washing, removing unnecessary items from rooms (where possible), leaving doors open so door handles don’t have to be used, regularly disinfecting door handles and communal areas.

If someone does fall ill with suspected symptoms, and it is appropriate in the setting to do so, the care home could also consider rearranging rooms temporarily to create a space that is dedicated to caring for those who are showing symptoms. This may also help reduce the amount of PPE needed and minimise the number of staff members who are potentially exposed to the virus.

Can a staff member refuse to come to work because of health and safety concerns?

If an employee refuses to come to work because they believe they are at a risk of serious and imminent danger which cannot reasonably be averted and they are then dismissed for refusing to work in those circumstances, they may have a claim under s.100 of the Employment Rights Act 1996 if they are dismissed as a result. This likely to cover employees who are in the vulnerable category due to their age, underlying health conditions or pregnancy and such employees may also have a discrimination claim if they were dismissed. It is also likely that concerns over the lack of PPE or other health and safety issues related to the Coronavirus would be covered too, especially if a care home doesn’t have any PPE at all and/or residents are showing symptoms.

In this situation an employer should carry out a health and safety risk assessment as a first step and consider whether the risks can be adequately mitigated or averted. If that is not possible and the risk of serious and imminent danger remains, the employer could investigate alternatives such as taking holiday or unpaid leave until the risk has changed. As this claim exists from day one of employment, any employee dismissed in these circumstances is likely to have the right to bring a claim.

Are there any contractual requirements?

It would be unusual for a normal contract of employment to contain provisions specifically dealing with a pandemic of this kind. However, normal employment law rules haven’t stopped because of the Coronavirus. An employer must make sure any steps it takes don’t breach an employee’s contract of employment. A good example of this is that if staff have mandatory training that is about to expire that training will need to be updated despite the current pressures.

Can employees work more hours to cover staff shortages?

Yes, as long as their hours don’t exceed the limits under the Working Time Regulations.
The key things to remember are that the normal working week should be under 48 hours. If extra shifts will exceed this, employees need to agree in advance that their working week can be longer by signing a separate opt out agreement. The 48 hours is averaged over 26 weeks for those working in residential institutions or 11 hours for those providing care in a person’s home, so a one-off extra shift shouldn’t cause a problem but regular or numerous extra shifts would.

The normal rules on rest breaks are also slightly different for those working in residential care institutions. Employers should ensure that where possible employees have 11 hours uninterrupted rest each day between shifts and 24 hours uninterrupted rest each week (or 48 hours each fortnight) or a compensatory period of rest as soon as possible afterwards if this isn’t possible.

It’s important not to forget that daily rest breaks are vital too; at least 20 minutes if a shift is more than 6 hours long.

It is also possible for care homes to recruit volunteers to fill gaps in staff availability if existing staff aren’t enough. Such volunteers must be background checked, given any necessary training and supervision and carefully supervised whist volunteering.

What does the Government’s announcement about carrying over holiday really mean in practice?

The newly enacted Working Time (Coronavirus) (Amendment) Regulations 2020 allow employees and workers who haven’t been able to take their leave this year due to the Coronavirus pandemic to carry over up to four weeks annual leave into the next two leave years. Employers can also agree for any remaining contractual holiday to be carried over as well. Employers can refuse new applications for holiday if there is a business reason for doing so and can also give notice to employees to cancel a planned holiday if enough notice is given. This should help those in residential care to keep as many people as possible available to work. Although employers should bear in mind the health and safety benefits of annual leave and where it will not cause a staffing issue, employees should be encouraged to take their holiday.

Can the Coronavirus Job Retention Scheme (“the Scheme”) benefit those in this industry?

Yes, if the employer is considering lay-off or redundancies then the Scheme can be used in the same way as in other industries. Staff can be selected for furlough, notified of the terms and their employer can recover up to 80% of their wage costs (or £2500 whichever is lower) from the Government.

In reality, the Scheme is unlikely to be the first option for employers in this industry because there is a increased workload and a shortage of workers not work. However, it might be useful for employees who are struggling to work because of childcare commitments, pregnancy or long-term health conditions to avoid unpaid leave.

What should employers do next?

This pandemic is having a disproportionate effect on all employers and employees in this industry; the pressures are high and the stakes even higher. But with the right legal support employers can weather this storm and come through the other side stronger. Following the regulations and seeking prompt advice on any issues is the best way to keep on top of the current situation and ensure that inadvertent breaches are avoided.