Pharmacies throughout the UK are now grappling with swine flu and their designated roles within PCTs’ pandemic response plans. But, while trying to ensure the smooth provision of pharmacy services as the pandemic escalates, businesses also need to consider their legal responsibilities as employers.

The NPA estimates that for small businesses, with five to 15 members of staff, up to 35 per cent of the workforce could be affected at the peak of a pandemic. So, with 100,000 new cases a day expected by the end of the month, employers and employees need to be aware of their rights and responsibilities.

 

Can employees refuse to work?

Employees have the right to feel concerned about their health. However, if they unreasonably refuse to attend work they risk incurring disciplinary action for unauthorised absence. What is reasonable depends on the particular circumstances.

This issue generated a lot of debate in the workplace following the heavy snowfall earlier this year. Some employers refused to pay employees who were unable to attend work and attracted adverse publicity as a result.

Employers should set out in a policy when they reserve the right not to pay an employee who does not attend work.

For example, it would be reasonable for some pharmacy staff to take unpaid leave if colleagues who worked similar roles contracted swine flu as a result of being exposed to the illness by their customers. Nevertheless, employers can try to avoid this by allaying staff fears, in line with their health and safety obligations, by taking appropriate measures such as excluding anybody from the premises who is suspected of suffering with swine flu, or by providing face masks.

Similarly, employers should deal with staff who are at most risk – such as those who are pregnant – by carrying out a risk assessment on the environment in which those employees work to determine how likely they are to come into contact with people suffering from swine flu. If exposure is likely, employers should try and come to an arrangement.

If a change to work is not possible, then employers should consider allowing them a period of unpaid leave until the risks lapse.

 

Can employers force staff to stay away from work?

Employers have a legal duty to provide a safe system of work and to prevent a foreseeable risk of injury to their employees.

This means that if an employer has genuine concerns that an employee is endangering the health of other employees, such as displaying flu-like symptoms, then it may be reasonable to require the employee to remain away from the workplace.

However, employers should still check the wording of the contract of employment or separate sickness policy before enforcing this.

 

When is an employee entitled to receive sick pay?

If an employee stays away from work on sick leave then they will be required to self-certify the first seven days of their absence and thereafter produce a sick note in order to claim statutory sick pay.

An employer may also have additional rules that need to be heeded if company sick pay is paid. If an employee has obtained a sick note then it is difficult for an employer to override this without good reason.

If the absence is relatively short, it may be difficult to take any action, but the employer should ensure that they have an effective return to work policy to deter employees from unwarranted sickness absence.

Employees who are genuinely ill will be entitled to ordinary sick pay, details of which should be set out in the contract of employment or a separate sickness policy.

After seven days, an employer can obtain a doctor’s certificate to confirm whether or not the employee has caught the flu. The position may be more difficult to manage where an employer insists an employee stays away from work because they have flu symptoms.

If an employee is arguing that they can carry on working, is an employer entitled to pay sick pay only? Again, employers should review their sick policies.

 

Are my employees entitled to time off because their children have swine flu?

An employee is legally entitled to take a ‘reasonable’ amount of time off work to deal with emergencies involving dependents. A dependent is an employee’s spouse, civil partner, children, parents, anyone who lives in the same household (excluding tenants and lodgers) as the employee, and those who reasonably depend on the employee to make arrangements for the provision of care.

There is no set answer as to when a situation will be an emergency. Employers should consider each request on an individual basis.

Recent tribunals have made clear that one factor that is particularly relevant is the amount of time between an employee knowing that there is a risk of disruption and the risk becoming fact.

For example, it is often the case that employees will not know until the last minute that a dependent has developed an illness.

In this situation it is advisable for employers to treat the employee’s absence from work as an emergency, at least until the employee has made suitable childcare arrangements.

All employees are entitled to time off work for dependents regardless of length of service and whether or not they are employed on a full or part-time basis.

Workers and the self-employed are excluded. But remember that employers are not under a duty to pay employees for time off work for dependents.

If an employer suspects that this right is being abused, the employee should be dealt with in accordance with the contractual or workplace disciplinary procedure.

 

And finally…

In the event that employees are either suffering or are at risk from swine flu, employers should also be aware of their obligations under the Working Time Regulations 1998 if the remaining healthy workforce are expected to cover the duties of those employees absent due to sickness.