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This FAQ will be regularly updated in response to changes in policy and guidelines, member requests, and additional information as it becomes available.
If you need further personalised employment advice and support, please use the online Q&A system (password required), use our voicemail service on 01256 771-777, or email Advice@hcsa.com.
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Last updated 19/03/2020
Find out the local policies and protocols where you work. Where staff are required to self-isolate, pay arrangements should be clearly communicated during this period of absence.
Where staff are being paid under contractual sick pay, any absence should be treated as an absence related to compliance with national infection control guidance and should not count towards any sickness absence policy triggers.
Last updated 04/04/2020
If you believe that you may be more vulnerable to Covid-19, eg you have a suppressed immune system or you are older, ensure that you seek advice from occupational health regarding your deployment.
I am a front-line respiratory doctor with a chronic kidney condition. Where do I stand?
I have mild asthma which has been bothering me lately. How can I safeguard myself and what are my legal rights?
Advice: Your employer has a legal duty to consider the health and safety risks of all staff. Employers must identify staff who may be more at risk and particularly those working in high risk areas, including the emergency department and critical care units.
If you fall into an “at risk” category, your employer should talk to you about your role and any elements which may put you at greater risk.
This should involve developing a plan to implement any reasonable adjustments where required and flexible working arrangements if possible, eg redeployment into lower risk areas, reduced travel or working from home.
If your employer fails to address these issues then you must take the initiative and discuss the situation early with your line manager and/or HR department as well as the Health and Safety lead and request a referral to an Occupational Health specialist so that a risk assessment is prepared and your employer has the information necessary to meet their legal and contractual obligations.
The government has issued guidance on risk assessments for health care staff at high risk of complications from COVID-19, as has the Health and Safety Executive (HSE).
HCSA National Officers are available to support members in these situations.
I am in an anaesthetist who suffers from type 2 diabetes. I have concerns about personal health. What should I do?
Advice: Public Health England guidance states that those suffering from diabetes are at an increased risk of severe illness from Covid-19 and that they must be particularly stringent in following social distancing measures.
In addition, work as an anaesthetist requires doctors to undertake aerosol generating procedures (AGP). Guidance on AGP is to be found at paragraph 8.1 of the PHE guidance on PPE (version checked 4th April 2020).
Clearly, social distancing is not possible in patient-facing roles and the HSE guidance makes it clear that those suffering from diabetes are greater risk than colleagues undertaking the same or similar work who do not suffer from diabetes. There is therefore an important health and safety issue which must be addressed by means of a risk assessment that results in a safe system of work for the doctor concerned.
I am a asymptomatic, but one of my family members is self-isolating with symptoms of Covid-19. My employer is still telling me that I have to work – what are my rights?
Advice: HCSA is lobbying the Government to ensure that testing is made available to all NHS staff.
In situations where there is currently no Covid-19 infection testing capability, the employer has a responsibility to balance the risk of possible Covid-19 infection transmission to patients, other members of staff and members of the public from doctors who may not be infected themselves but (if they were following national guidance) would self-isolate.
In this situation, you should contact your HCSA National Officer who will support you in complying with national guidance. In some circumstances, this may involve undertaking non-clinical work and/or training whilst self-isolating until you are able to return to full duties.
Employers have a duty to carry out a pregnancy risk assessment, which will need to take account of the latest advice on COVID-19.
The Government’s guidance on social distancing advises those who are at increased risk of severe illness from coronavirus, including those who are pregnant, to be ‘particularly stringent’ in following social distancing measures.
The Royal College of Obstetricians and Gynaecologists (RCOG) has issued updated guidance on pregnancy and COVID-19, including occupational health advice for employers and pregnant women.
The advice states that pregnant women who choose to work in patient facing roles after occupational health risk assessment, prior to the third trimester of pregnancy, should be supported to do so by minimising risk of transmission through established methods. In the third trimester and where there is an underlying health condition, a more precautionary approach is advised, and all patient contact should be avoided.
If you decide not to work in a patient facing role, then that choice should be respected. Employers have a legal duty to consider flexible working arrangements under section Employment Rights Act 1996 should explore alternative work, including home-working or administrative work.
HCSA national officers will support members who require further advice or assistance.
If you are moved from other clinical areas to support work on Covid-19, your employer should make an assessment on the ability to continue to deliver safe and effective care in the services/areas affected.
Your employer has a duty to ensure that steps are being taken to mitigate any safety risks that may occur if you are moved to other areas and that these are recorded.
In all cases:
The GMC has also issued guidance designed to ease the fears of doctors who may be redeployed to unfamiliar roles.
It states: “Patients must not be exposed to unnecessary risk. Difficult decisions may need to be made quickly about what is the safest and best course of action at any given time.
“When deciding the safest and best course of action in the circumstances, doctors should consider factors including:
It is important to note that while there may be mitigating circumstances many of the usual criteria by which doctors’ fitness to practice is judged will still apply during this period. Therefore, HCSA would advise a cautious approach to risk which is mindful of the GMC guidance.
I have been told that I will be redeployed to help tackle Covid-19. Can I be made to work in a different area of medicine?
Advice: In view of the scale of the crisis, it is reasonable for an employer to ask you to act outside of your normal role and staff are obliged to follow the employer’s lawful and reasonable management instructions. A failure to do so might be considered a disciplinary matter.
If you feel pressure to undertake duties in a way that you do not consider to be safe or if you are asked to work in ways that you do not feel competent, then you should immediately challenge the request with management.
The earlier this is done the better.
This should be in, or confirmed in, writing. In expressing the challenge, it is important to outline your relevant inexperience and/or lack of training, the consequential risk to patient safety and, therefore, your reluctance to treat patients in the circumstances being demanded by your employer.
HCSA National Officers will support members in resisting unreasonable and unsafe requests.
If you are not working to your existing shift patterns during this period, your amended working arrangement should still be agreed with you. Employers are responsible for ensuring that arrangements for accruing overtime payments/TOIL for any additional work have been agreed and confirmed with locally recognised trade unions, including HCSA.
Whether or not you are caring for patients with suspected or confirmed cases of Covid-19, this will be a period of unprecedented demand for health services. However, it remains vitally important to ensure that you are able to take adequate rest breaks during a shift and in between shifts to ensure you do not become fatigued.
I have been asked to work additional hours – what are my rights?
Advice: Although there are statutory limits on working time, in the light of the present crisis it would be considered reasonable and lawful for your employer to require you to work overtime.
However, there are two important principles which should be followed in all cases:
If a doctor believes that that they are being required to work additional hours/overtime that risks compromising patient and/or their own safety, then the doctor should advise (keeping a record of the same) their employer of that immediately and request an adjustment of their workload so as to ensure that they remain within the bounds of safe working.
Where you cannot make use of existing provisions such as care provided by schools for critical staff, your employer should exercise their discretion and use existing flexibilities to support you at this difficult time.
National guidance to employers stresses the need to be as flexible as possible given the present exceptional circumstances. This includes considering the need to work flexibly or from home and temporarily altering working hours, while balancing the needs of the service at that point in time.
I am the principal evening and weekend carer for a relative who is suffering from the advanced stages of dementia. Currently, my job plan does not require on-call, evening or weekend work. Is my employer able to change my job plan?
Advice: Your employer has a legal duty to give reasonable consideration to applications for flexible working arrangements. The law is supplemented by relevant ACAS guidance.
HCSA National Officers will support members in making and progressing such applications for flexible working.
Can my employer cancel my pre-booked leave?
Advice: Yes, your employer is able to cancel periods of annual leave, provided that they act reasonably.
Guidance from NHS Employers states that this position should be discussed with you in a sensitive manner and that all other avenues should be explored before a decision is taken.
Where a decision is taken to cancel leave, your employer must provide at least one day of notice per one day of leave.
My employer is insisting that I can only carry over five days of annual leave into the new year – is this correct?
Advice: No. The Working Time (Coronavirus) (Amendment) Regulations 2020 SI 2020/365 have been made and brought into force with immediate effect. They amend the Working Time Regulations 1998 SI 1998/1833 to relax the restriction on carrying over untaken annual leave into the next leave year where leave has not been taken because of the Covid-19 pandemic. The untaken leave can be carried over into the next two leave years.
The new rule applies to the four weeks of annual leave provided for by Reg 13 WTR but not the additional 1.6 weeks of annual leave provided for by Reg 13A, which is already subject to different rules on carry-over.
HCSA continues to lobby the government, as well as local and national NHS bodies to ensure that hospital doctors are able to access the PPE that they require to keep them safe.
HCSA President, Dr Claudia Paoloni wrote to the Health Secretary on 19th March, raising concerns about both the availability of PPE and the guidelines for its use. We have also raised concerns with Public Health England about its guidance and called for it to be strengthened in a number of respects.
Since the President’s letter the government has issued new guidance on PPE. This guidance recognises that employers are under a legal obligation (under the Control of Substances Hazardous to Health) to adequately control the risk of exposure to hazardous substances wither exposure cannot be prevented.
The latest PHE guidance has a specific reference for inpatient areas which can be found at section 8.3 (correct at 4th April 2020).
Inevitably, not all situations will be covered by the guidance and section 7 (Risk assessment) includes the following advice:
"Ultimately, where staff consider there is a risk to themselves or the individuals they are caring for they should wear a fluid repellent surgical mask with or without eye protection, as determined by the individual staff member for the episode of care or single session."
It is the responsibility of your employer to ensure that adequate supplies of PPE are available for use by staff providing care to suspected or confirmed cases of Covid-19.
Anyone who may be involved in the care of patients with suspected or confirmed cases of Covid-19 should be trained in appropriate infection prevention measures - including the correct use of PPE e.g. how to put it on and take it off safely.
Fit testing should be in place for the use of FFP3 face masks. We would advise that you immediately make management aware if fit testing has not been made available or if the FFP3 does not fit.
Employers have a duty to ensure that procedures are in place to allow staff and representatives to raise any concerns at the earliest opportunity in relation to equipment.
In the first instance, you should raise any concerns with your line manager/supervisor.
However, if you continue to have any concerns, please do not hesitate to contact HCSA for further support. We are also monitoring the availability of PPE centrally.
It is important to familiarise yourself with the Public Health England guidance on PPE usage when dealing with Covid-19 patients in different circumstances.
In view of the lack of a comprehensive testing regime, HCSA is now calling for (as a minimum form of protection) surgical masks to be worn by all staff and all patients in all areas of all hospitals and for all patients to be treated as Covid-19 patients.
However, if the patient is coughing our recommendation is that in face-to-face contact situations the safest approach would be for full PPE including FFP3 to be used.
If management were to dispute this then immediate contact should be made with the Trust Health and Safety lead (copied to your line manager) with a request for an urgent risk assessment to be undertaken, with reference made to the advice from the Health and Safety Executive (HSE) which can be found on the HSE website.
What do I do if I am told by my employer that I have adequate PPE, but I don't believe that it is?
The age-related mortality statistics suggest I have around double the risk of my younger colleagues of not surviving if I get infected by Covid-19. If I don't have PPE clothing can I legally refuse?
Advice: Your employer has the same duty of care for the health and safety of their staff during a pandemic as in other circumstances. Your employer should review PPE equipment to ensure adequate supplies are available, and that fit testing and training for use has been undertaken.
If you are asked to work in circumstances where your employer may not be adopting a safe system of work, then it may be reasonable for you to refuse undertake the particular task required. However, whether a refusal is ‘reasonable’ would depend on an assessment of all of the relevant facts, including your individual circumstances, the risk of infection and the risk to the patient of not acting.
In the first instance you should raise concerns immediately with management and your Trust Health and Safety lead and, very likely, request an urgent risk assessment before undertaking the procedure required.
Should I wear my normal clothing to, from and while at work?
Advice: Clearly, much will depend upon the extent of a doctor’s probably contact with the Covid-19 virus whilst at work.
However, Section 11 (Staff Uniform) of Reducing the risk of transmission of Covid-19 in the hospital setting (correct as of 3rd April 2020) (https://www.gov.uk/government/publications/wuhan-novel-coronavirus-infection-prevention-and-control/reducing-the-risk-of-transmission-of-covid-19-in-the-hospital-setting) includes the following guidance:
“The appropriate use of personal protective equipment (PPE) will protect staff uniform from contamination in most circumstances. Healthcare facilities should provide changing rooms/areas where staff can change into uniforms on arrival at work. Organisations may consider the use of theatre scrubs for staff who do not usually wear a uniform but who are likely to come into close contact with patients (for example, medical staff).”
I lead an ICU team of junior doctors and nurses. While I am relatively relaxed about my own personal risk, I am concerned about my legal responsibility to my staff in situations where there may be a requirement to administer treatment but there is inadequate PPE.
Advice: The clinical leads for each department should undertake a contingency planning process which identifies particular risks (in this case risks resulting from an insufficient supply of PPE and/or other presented risks).
There must then be (with the support of Trust Health and Safety leads) and, if necessary, microbiologist support, urgent risk assessments which review systems, equipment and training and which take account of any known individual vulnerabilities. Effective and safe non-standard ways of working to meet the emergency should be considered.
Clinical leaders should ensure that Trust management is made aware of the results of the risk assessments (and keep records of the same) and the possible consequential impacts on operational effectiveness as well as risks of harm to staff and patients.
Trust management will be responsible for the sourcing and prioritised allocation of resources across the Trust.
Clinical leaders have to make decisions regarding the management of their departments in accordance with the demands that they face and the resources that they are allocated. However, clinical leaders should not direct their staff to work in ways that imperil safety as determined by the risk assessments.
Therefore, if there is a concern for the health and safety of staff and patients, this must be reported to more senior management for further urgent guidance as to how to proceed.
Further, clinical leaders must not create an environment, or permit a climate to develop, whereby members of staff feel obliged to, and/or put under pressure to, adopt working practices that are not safe.
Therefore again, if there is a particular concern it should be reported (with a record being kept) immediately to more senior management levels for advice before being acted upon. Clinical leaders should state clearly and regularly (so that all their staff know) that nothing they say or do should be misunderstood as a direction to staff to work in a manner that is unsafe and if any staff member has a concern about their health and safety they should immediately report it to the clinical leader.
Staff should be provided with readily understood information that ensures they are aware of, and are able to work within, the boundaries for safe working.
Certain health and safety legislation (eg Health and Safety at Work Act 1974) creates individual (as opposed to corporate) criminal liability in the event of committing health and safety offences.
However, such individual liability is limited to situations where an individual has consented or connived in the breach or the breach is attributable to any neglect by the individual. Therefore, if a clinical leader takes reasonable action within their authority to identify risks to the health and safety of their subordinates and acts within their authority to eliminate such risks, they are unlikely to be guilty of an offence.
For more information about health and safety obligations see the HSE’s website and also government guidance for health professionals. Addressing health and safety responsibilities as described above and in accordance with government guidance will help you protect yourself.
Employers have a duty to ensure that procedures are in place to allow staff and representatives to raise any concerns at the earliest opportunity in relation to equipment, policies and processes for managing Covid-19. As part of this, you should feel able to raise concerns without detriment, and you should be provided with feedback on the outcome.
In the first instance, you should raise any concerns with your line manager/supervisor. However, if you continue to have any concerns, please do not hesitate to contact HCSA for further support.
Currently we are maintaining a full advice service, although as part of our duty of care towards staff we are no longer conducting face-to-face meetings. We are replacing these with videoconferencing wherever possible.
You can contact us using the online Q&A system (password required), use our voicemail service on 01256 771-777, or email Advice@hcsa.com.
© Hospital Consultants and Specialists Association 2019
HCSA - the Hospital Doctors' Union is a professional association and trade union affiliated to the Trades Union Congress.