View our free COVID-19 Toolkit for regularly updated advice.
As the coronavirus situation changes day by day and concern grows, the advice below has been updated and amended. Where possible we have indicated the changes from what you might have read before.
We want to offer some advice on how the virus may affect disabled people and people with compromised immune systems. This advice is specifically about the coronavirus and your disabled employees.
For more general advice on the virus, how to prevent transmission and self-isolation please see the World Health Organization’s website.
For UK organisations the Government advice can be found on their website.
Furlough: The UK Government coronavirus job retention scheme
The UK Government advice on the coronavirus job retention or “furlough” scheme is constantly changing. This is updated guidance explaining the coronavirus job retention scheme and how it might affect disabled employees and people associated with disabled people, including carers.
The UK Government has said that if you cannot maintain your current workforce because your operations have been severely affected by coronavirus (COVID-19), you can furlough employees and apply for a grant that covers 80% of their usual monthly wage costs, up to £2,500 a month, plus the associated Employer National Insurance contributions and minimum automatic enrolment employer pension contributions on that wage.
This is a temporary scheme in place for three months which started from 1 March 2020, but it may be extended if necessary and employers can use this scheme anytime during this period. It is designed to help employers whose operations have been severely affected by coronavirus (COVID-19) to retain their employees and protect the UK economy. However, all employers are eligible to claim under the scheme and the government recognises different businesses will face different impacts from coronavirus. It is anticipated that it is private sector employers who will primarily use the scheme.
Employees on furlough leave cannot undertake any work for you. You will need to submit information to HMRC about the employees that have been furloughed and their earnings through a new online portal which is expected to be operational by the end of April 2020.
Employers are at liberty to make up the difference between this cap and the employee’s salary, but do not have to do so. If the employee’s salary is reduced they should be advised that they might be eligible for support through the welfare system including Universal Credit.
Q: Can any employer claim under the scheme?
A: Yes, as long as you have:
- created and started a PAYE payroll scheme on or before 28 February 2020
- enrolled for PAYE online – this can take up to 10 days
- a UK bank account
Any entity with a UK payroll can apply, including businesses, charities, recruitment agencies and public authorities.
Q: We have an employee who says that the person who used to provide care for his spouse is no longer able to visit their house. This mean that he needs to become his spouse’s full time carer and so is unable to work. Do we have to keep paying him?
A: In this situation you can furlough this employee and claim 80% of his salary from the Government Coronavirus Retention Scheme. This also applies to employees who have caring responsibilities for children.
Q: We have employees who say that they have to follow Government advice on shielding because of their own disability or the disability of someone that they live with and this means they cannot work. What does this mean and can we furlough these employees?
A: Yes you can and should furlough these employees. Shielding is a measure to protect people who are clinically extremely vulnerable by minimising all interaction between those who are extremely vulnerable and others. The Government strongly advises people with serious underlying health conditions (listed below), which put them at very high risk of severe illness from coronavirus (COVID-19), to rigorously follow shielding measures in order to keep themselves safe.
People falling into this extremely vulnerable group include:
1. Solid organ transplant recipients.
2. People with specific cancers:
- people with cancer who are undergoing active chemotherapy
- people with lung cancer who are undergoing radical radiotherapy
- people with cancers of the blood or bone marrow such as leukaemia, lymphoma or myeloma who are at any stage of treatment
- people having immunotherapy or other continuing antibody treatments for cancer
- people having other targeted cancer treatments which can affect the immune system, such as protein kinase inhibitors or PARP inhibitors
- people who have had bone marrow or stem cell transplants in the last six months, or who are still taking immunosuppression drugs.
3. People with severe respiratory conditions including all cystic fibrosis, severe asthma and severe COPD.
4. People with rare diseases and inborn errors of metabolism that significantly increase the risk of infections (such as SCID, homozygous sickle cell).
5. People on immunosuppression therapies sufficient to significantly increase risk of infection.
6. Women who are pregnant with significant heart disease, congenital or acquired.
Q: An employee handed in her notice before 28 February and was due to start work for another employer after 1 March when the notice period expired. She has asked if we can re-employ her because she is in the highly vulnerable group and so is unable to go into work for her new employer and she cannot do her job from home. Her new employer cannot furlough her because she would have started work for them after 1 March. Can we re-employ and then furlough her?
A: Yes depending on the dates. If you made employees redundant, or they stopped working for you on or after 28 February 2020 i.e. in this case her notice period expired after 28 February so she remained on your payroll after 28 February, you can re-employ her and put her on furlough leave and claim for her salary through the scheme.This would be good practice in this situation if you are able to do this as otherwise this employee will have no income other than benefits she might be able to claim.
Q: We had disabled employees who could only do part of their jobs from home so we reduced their hours as a reasonable adjustment and for others we granted unpaid leave. Can we furlough them now?
A: No. If employees are working reduced hours for reduced pay you cannot furlough them. If you are paying them their full-time salary for reduced hours then you can reduce their salary to pay them only for the hours that they work. You can furlough employees taking unpaid leave but only if they started their unpaid leave after 28 February.
If you furlough employees they should not do any work for you at all and this should be because they really cannot work from home. See the answer to the following query.
Q: Can we ‘furlough’ disabled employees who cannot work from home?
A: This is a possibility, but do think this through carefully to avoid discrimination claims from disabled employees.
Employers can only put employees on furlough leave if they would otherwise have to lay them off – i.e. make them redundant because it is no longer possible to pay the employees. If you intend to access the Coronavirus Job Retention Scheme you will need to discuss this with your employee and inform them that you will keep them on your payroll rather than making them redundant.
If you intend to furlough only disabled employees or employees who need to work from home with adjustments you may be open to claims for disability discrimination. Consider this example. You have two employees who do very similar work for the same salary. One can work from home with no adjustments. The other is disabled and needs adjustments such as assistive technology to work from home. If you choose to furlough the disabled employee rather than make the adjustments they need to work from home then it is open to that employee to claim that they have been treated unfavourably i.e. paid only 80% of their salary, or if you choose to make up the difference, not being allowed to continue to work and occupy themselves because of their disability.
Q: What about employees who are self-isolating or on sick leave? Can we furlough them?
A: Employees who are self-isolating or on sick leave should be paid sick pay under the terms of their contract or statutory sick pay. Online sick certificates can be obtained. If the employees stop receiving statutory sick pay but are still unable to work, you can furlough them.
Q: Does the furlough scheme mean we cannot make employees redundant?
A: Government guidance is unclear on this. There is nothing to suggest that you cannot make employees redundant during this period, including those who have been furloughed, but the Government want as many employees to stay in work as possible and so is encouraging use of the furlough scheme. Once the scheme ends if there is still no work for your employees to do or if your organisation is closing all or part of its operation you can make previously furloughed employees redundant. And you will not have to repay the grant received. When choosing criteria for redundancy do be careful not to unfairly target employees with disabilities as this might lead to disability discrimination and unfair dismissal claims. For more advice on determining fair redundancy criteria, BDF Members and Partners can email our advice service team.
Q: Does the job retention scheme and furloughing only apply to employees? We have disabled apprentices and agency workers and people on zero hour contracts who are unable to do their jobs either because they cannot be done from home or because they have caring responsibilities for a disabled person. What can we do for them?
A: Employees can be on any type of employment contract, including full-time, part-time, agency, flexible or zero-hour contracts. Foreign nationals are also eligible to be furloughed.
Apprentices can be furloughed in the same way as other employees and they can continue to train whilst furloughed.
However, you must pay your Apprentices at least the Apprenticeship Minimum Wage, National Living Wage or National Minimum Wage (AMW/NLW/NMW) as appropriate for all the time they spend training. This means you must cover any shortfall between the amount you can claim for their wages through this scheme and their appropriate minimum wage.
Guidance is available for changes in apprenticeship learning arrangements because of COVID-19.
The Government has said that people can leave their homes for one of four reasons:
- Shopping for basic necessities, for example food and medicine, which must be as infrequent as possible.
- One form of exercise a day, for example a run, walk, or cycle – alone or with members of your household.
- Any medical need, or to provide care or to help a vulnerable person.
- Travelling to and from work, but only where this absolutely cannot be done from home.
Does the last bullet point mean that we can ask employees, including disabled employees who cannot work from home to travel into work?
Official advice has been slightly ambiguous on this point but for the moment it does seem that people who are not key workers can leave their homes to go to work if they cannot do their job from home. This includes disabled workers. However, consider carefully if your employees really need to travel into work and wherever possible allow them to stay at home.
What does “absolutely cannot be done from home” mean? Does that cover disabled employees who need adjustments that they do not have at home?
There is no definition of “absolutely cannot be done from home” but such a strong statement indicates that it means an intrinsic function of the role cannot be done remotely e.g. providing physical care such as bathing or feeding someone else, stacking shelves in a shop, rubbish collection and cleaning. See the full list of businesses that have to close.
If disabled employees work with adjustments such as assistive technology on their computers, specialist chairs, desks or other equipment then you should consider ways in which these can be transported to their home.
For some employees who need adjustments such as assistive technology installing the software they need onto work laptops that they can take home will be sufficient. However, for others a laptop screen is going to be too small. If an employee uses a large screen monitor because e.g. they have a visual impairment and still need to see the screen as well as use speech to text software you may need to transport their monitor to their home.
There might be issues around licences which are often for specific computers not users. Some providers are being flexible about this so do get in touch with your provider. It might be, however, that you will need to buy additional licences for employee’s home computers or laptops that you provide them with so that they can work from home.
You might also need to install video conferencing apps such as Teams or Skype so that they can join meetings remotely or provide them with mobile phones with such apps installed. Remember though that video and teleconferencing can be challenging if not impossible for employees who are deaf or have a hearing impairment. Check with your provider on the latest developments. Both Zoom and Microsoft Team have indicated that they will provide captioning (subtitling) shortly. It may also be possible for an interpreter to join the meetings as well if sufficient notice is given. For more detailed guidance and advice see this blog post from BDF Ambassador Joanna Wootten.
AbilityNet also have advice on their website.
Office furniture such as adapted chairs can also be transported to employee’s homes. Desks can be more of a challenge. You can explore with the individual if they have anything at home that might suffice but you do need to ensure that it is safe e.g. using an ironing board might be a DIY standing desk as the height can be adjusted but is it stable or big enough to support the computer being used?
Many providers are now offering remote workplace (meaning the home “office” now) assessments via videoconferencing platforms. These are not ideal as it isn’t always easy for the assessor to see how the person works when this is done remotely but in the current circumstances it is still worth considering to ensure employees are working as safely as possible. Check with your assessment provider or call the Business Disability Forum Advice Service for more information.
The “home office” environment
Employees not used to working from home will need support and advice on movement and exercise in order to stay comfortable and healthy.
Be aware that the home conditions of some employees might not be conducive to home working e.g. if they share accommodation or have small children or children who need to be home schooled because schools are closed. This might make it difficult for them to be as productive. Be flexible and perhaps allow employees to schedule their work for different times to usual to allow them to care for children e.g. in the evenings. However, do let others know that just because some colleagues are sending emails very early or late in the day does not mean that they need to be responded to at those times. Colleagues should be encouraged to work their individual hours and then log off rather than staying “on” all the time.
Internet connections can be an issue if a lot of people in the household are using the connection at the same time. You could provide guidance on usage i.e. what can they do offline so they can timetable this with other people at home as well as “quiet times” so they can concentrate.
Some employees might also struggle with the isolation particularly if they live alone and might find it difficult to motivate themselves. Managers need to be alert to this and find ways of ensuring that they check in with the home workers regularly. Setting up meetings with others using video conferencing at the start of each day can be a good way to combat isolation.
It might also be the case that employees with assistive technology (or indeed without) cannot access some of your systems remotely e.g. for security reasons. The work and job description of these employees may need to be temporarily adjusted to reflect this. You might be able to substitute some other work for the tasks they cannot perform remotely.
Key workers needed to maintain those systems may need to come into your premises. Consider providing taxis for these employees to provide them with additional protection from infection.
The Government intends the Coronavirus Job Retention Scheme to run for at least 3 months from 1 March 2020, but will extend if necessary.
If you intend to furlough only disabled employees or employees who need to work from home with adjustments you may be open to claims for disability discrimination. Consider this example. You have two employees who do very similar work for the same salary. One can work from home with no adjustments. The other is disabled and needs adjustments such as assistive technology to work from home. If you choose to furlough the disabled employee rather than make the adjustments they need to work from home then it is open to that employee to claim that they have been treated unfavourably i.e. paid only 80% of their salary or if you choose to make the difference, not being allowed to continue to work and occupy themselves because of their disability.
If key workers are disabled do we have to insist that they stay at home?
No because not all disabled people will fall into the category defined as vulnerable groups. Workers who do fall into that category whether or not they identify as disabled should be strongly advised and supported to stay at home and work from there if possible. Any worker who shows symptoms of the coronavirus should be send home immediately. Provide reassurance if they are resistant to the idea because they think they are “letting the side down”.
What is meant by “vulnerable groups”?
Not all disabled people will fall into the category of “vulnerable groups” and not everyone in this category will self-identify as disabled. “Vulnerable groups” means people who are more susceptible to the coronavirus and Covid-19. This group includes those who are:
- aged 70 or older (regardless of medical conditions)
- under 70 with an underlying health condition listed below (i.e. anyone instructed to get a flu jab as an adult each year on medical grounds):
- chronic (long-term) respiratory diseases, such as asthma, chronic obstructive pulmonary disease (COPD), emphysema or bronchitis
- chronic heart disease, such as heart failure
- chronic kidney disease
- chronic liver disease, such as hepatitis
- chronic neurological conditions, such as Parkinson’s disease, motor neurone disease, multiple sclerosis (MS), a learning disability or cerebral palsy
- problems with your spleen – for example, sickle cell disease or if you have had your spleen removed
- a weakened immune system as the result of conditions such as HIV and AIDS, or medicines such as steroid tablets or chemotherapy
- being seriously overweight (a body mass index (BMI) of 40 or above)
- those who are pregnant
Note: there are some clinical conditions which put people at even higher risk of severe illness from COVID-19. If you are in this category, the NHS in England will directly contact you with advice the more stringent measures you should take in order to keep yourself and others safe. For now, you should rigorously follow the social distancing advice in full, outlined below.
People falling into this group are those who may be at particular risk due to complex health problems such as:
- people who have received an organ transplant and remain on ongoing immunosuppression medication
- people with cancer who are undergoing active chemotherapy or radiotherapy
- people with cancers of the blood or bone marrow such as leukaemia who are at any stage of treatment
- people with severe chest conditions such as cystic fibrosis or severe asthma (requiring hospital admissions or courses of steroid tablets)
- people with severe diseases of body systems, such as severe kidney disease (dialysis)
A disabled employee who cannot work from home is worried that the time off she takes will trigger a sickness absence review and wants to know if this absence can be disregarded.
Given the current situation it would be good practice to amend sickness absence and disciplinary procedures and disregard COVID19-related absences. Otherwise an employee who is unwell or at risk of spreading the infection might return to work and infect other workers. If they have symptoms and are unwell, they are unlikely to perform well or be productive at work in any event.
A disabled employee who is already at risk of sickness absence review proceedings because of their existing disability related absences is going to be substantially disadvantaged by the requirement to self-isolate (a provision, criterion or practice) if this means that disciplinary/sickness review procedures are triggered and so as an employer you might be under a duty to disregard the COVID19 related absence as a reasonable adjustment.
We have employees who have to stay at home now but cannot do their jobs from home. Do we have to pay them sick pay?
Whether or not the employee is eligible for contractual sick pay will depend on the terms of their contract with you and your sick pay policies. However most contractual sick pay policies do not allow for payment in these circumstances so consider amending them during this period. Do also think about whether there is any work that they might be able to do from home if they had the right equipment e.g. training by following online courses.
If this is not possible then they should be entitled to Statutory Sick Pay (SSP). The Prime Minister announced that SSP would be available from day 1 of someone being unwell rather than from day 4, as it was previously. The Chancellor reiterated this point in his Budget Statement and added that it would also be extended to people who are told to self-isolate – whether or not that person is showing any symptoms of being unwell. He announced that employees will be able to obtain sick notes via 111 including online. This is intended to speed-up the process and to prevent any unnecessary GP appointments, which could further spread the virus.
Additionally in the March 2020 budget statement SMEs were given the extra support of being able to reclaim SSP for up to two weeks for any employee who is off as a result of COVID-19. Employers should maintain records of staff absences and the reasons. For more information, please see the government’s advice for businesses experiencing increases in cost or financial disruption.