Dr Charles Shepherd, Hon. Medical Adviser, ME Association.
We are receiving an increasing number of queries from people who have ME/CFS, or are carers of people with ME/CFS, who are able to work, but are confused by what is happening in the current crisis.
I have therefore prepared a summary of basic factual information that needs to be taken into consideration with respect to employment that should help if you encounter any difficulties.
Please note that we cannot offer legal advice on complex individual employment problems and disputes with employers. In this case you need to speak to your union or professional body representative – who should be able to provide expert legal advice if necessary. Or to an employment law solicitor.
- You may also like to refer to the comprehensive guidance we produced earlier this week. We will continue to keep you informed of any major changes as a result of the Coronavirus situation.
The Basic Facts
1. Everyone is being asked to work from home if this at all possible.
This also includes shifting work to electronic communication and e-conferencing from home if this can be done. But there are clearly people, who might have manual jobs and those in most of the essential public services, who cannot do their normal work from home.
2. If you are employed:
Statutory Sick Pay (SSP)
Everyone in employment who has to self-isolate for up to 14 days – because they or a household member have coronavirus symptoms or the actual infection – should be able to claim SSP:
- You can get £94.25 per week SSP if you’re too ill to work. It’s paid by your employer for up to 28 weeks.
- If you are staying at home because of COVID-19 you can now claim SSP. This includes individuals who are caring for people in the same household and therefore have been advised to do a household quarantine.
- To check your sick pay entitlement, you should talk to your employer, and visit the Statutory Sick Pay (SSP) page for more information.
- If you are not eligible for SSP – for example if you are self-employed or earning below the Lower Earnings Limit of £118 per week – and you have COVID-19 or are advised to stay at home, you can now more easily make a claim for Universal Credit or new style Employment and Support Allowance.
- If you are eligible for new style Employment and Support Allowance, it will now be payable from day 1 of sickness, rather than day 8, if you have COVID-19 or are advised to stay at home.
Furloughed workers are those whose employers cannot cover staff costs due to coronavirus, and as such they have been asked to stop working and remain at home, but have not been made redundant.
- If your employer cannot cover staff costs due to COVID-19, they may be able to access support to continue paying part of your wage, to avoid redundancies.
- If your employer intends to access the Coronavirus Job Retention Scheme, they will discuss with you becoming classified as a furloughed worker. This would mean that you are kept on your employer’s payroll, rather than being laid off.
- To qualify for this scheme, you should not undertake work for them while you are furloughed. This will allow your employer to claim a grant of up to 80% of your wage for all employment costs, up to a cap of £2,500 per month.
- You will remain employed while furloughed. Your employer could choose to fund the differences between this payment and your salary but does not have to.
- If your salary is reduced as a result of these changes, you may be eligible for support through the welfare system, including Universal Credit.
- It is intended for the Coronavirus Job Retention Scheme to run for at least 3 months from 1 March 2020, but it will be extended if necessary.
Please note that it is the employer who decides which employees are going to be furloughed – i.e. no longer working at the shop/office etc. but will remain on the payroll and that any payment will only apply to those who are paid via the PAYE scheme.
3. If you are self-employed:
The Government has just announced similar measures to those who are employed. If you lose income as a result of the coronavirus restrictions, you will be able to claim a grant of up to 80% of trading profits (max. £2,500 per month) for the next three months (this may be extended if necessary).
All those in self-employment who have submitted a tax return for the last tax year will have been contacted by HMRC via email with the details.
The Government has also introduced the following help for the self-employed:
- Deferral of Self-Assessment Income Tax payments due in July 2020 and VAT payments due from 20 March 2020 until 30 June 2020
- Grants for businesses that pay little or no business rates
- Increased amounts of Universal Credit
- Business Interruption Loan Scheme
4. People with ME/CFS are classified as having a disability under the 1995 Disability Discrimination Act and the current 2010 Equalities Act.
In addition, there is what is known as the NHS flu vaccine list. This list sets out all the groups of medical conditions that the Department of Health consider to be risk factors when it comes to catching influenza and consequently need a flu jab each year.
This list is also now being used to describe conditions that place a person with any of these conditions, or groups of conditions, at higher risk if they catch the coronavirus.
ME is classified by the World Health Organisation (and CFS is linked to this classification) and NHS England as a neurological disease, and neurological diseases are covered by the NHS flu vaccine list.
ME/CFS is therefore classified as an at-risk illness and disability in relation to both influenza and coronavirus (covid-19). Those with the ME/CFS diagnosis should be considered ‘vulnerable’ and should practice stringent social distancing measures.
5. At present we don’t know whether people with ME/CFS are more likely to catch coronavirus or develop serious respiratory complications if they do.
What we do know is that they are at increased risk of an exacerbation of ME/CFS symptoms, or a relapse of their ME/CFS, if they catch a serious viral infection like the coronavirus.
People with ME/CFS should therefore be considered ‘vulnerable’ whose health is likely to be exacerbated by covid-19 infection and they should be stringently practising the social distancing measures outlined by the Government.
6. ME/CFS is not one of the conditions that is listed in the new ‘extremely vulnerable’ category that covers people who are likely to develop very serious respiratory complications if they catch the covid-19 infection.
But if you have ME/CFS and one of these conditions as well – which include cancer, organ transplantation, immune deficiency diseases and the use of immunosuppressive drugs such as oral steroids – then you need to self-isolate for 12 weeks and clearly cannot physically go to work.
7. Employers have a clear and well-defined legal duty under health and safety legislation to make sure that modifications are made to working duties to ensure the safety of all employees, especially vulnerable and disabled employees, in a situation such as the one we face now.
Examples here would include the provision of good hygiene facilities to wash hands and having access to antiviral sanitising products, making sure that the workplace is not overcrowded (desk working for example needs to be such that you are at least 6 feet away from your neighbour) and anything else that could increase the risk of catching or spreading the virus.
Modifications to duties could include moving the person to role that involves very little public contact or setting up a home working facility with the supply of IT equipment.
8. If you are working for a company or organisation that is still carrying out its normal activities (e.g. food supply companies, care or health service workers), and you are still able to carry out your normal duties, and are happy to do so – with or without modifications, then there should not be any problem unless the situation changes.
9. If you are a person with ME/CFS, and want to carry on working, but have concerns about being placed at increased risk because of the duties you are being asked to do, or the hygiene conditions in getting to work or being at work, you first need to speak to the human resources department or occupational health department to see if solutions to your concerns can be found. You could also speak to your trade union representative or professional body to help you to try and negotiate a suitable solution.
10. If you are a person with ME/CFS, or a carer of someone with ME/CFS, and are capable of carrying on working (even with helpful modifications to duties) but are still worried about the risk of travelling to work and/or some other aspect of work, and you therefore want to stop working you are in a rather grey area.
You may find that your employer is sympathetic, and if it’s not possible to modify your duties, you may find that a suitable financial arrangement can be made for you to remain at home. But some employers will not be sympathetic to a decision to not come to work for the foreseeable future and refuse to continue paying your wages.
As with 8 above, you need to consult your trade union representative or professional body to see if they can negotiate a way forward. There are, of course, solicitors who specialise in employment law – but this will be on a fee-paying basis. The situation remains fluid and we may hear more from the Government about measures for employees in the coming days or weeks.
- UK Govt Guidance: Going to work
- UK Govt Guidance: For employers, organisations and employees
- UK Govt Guidance: For the Self-Employed
- ACAS advice on coronavirus for employers and employees
The ME Association has an information booklet covering all general aspects of employment, including the sort of modifications that employers have a duty to consider for disabled employees.
We also have various leaflets that will help you understand and apply for welfare benefits. N.B. These do not cover the coronavirus and you would be advised to read them along with the latest guidance from the Government.
Finally, it’s worth noting that the coronavirus crisis is forcing dramatic changes to the way in which we all carry out our daily lives. Everyone is on a steep learning curve here and all relevant factors – age, severity of illness, travel to work, the sort of work you do etc. – need to be taken into consideration when it comes to deciding whether you should continue to go to work or to remain at home.
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