In a bid to regain control of coronavirus infection rates which have soared across many parts of Wales in recent weeks, the Welsh Government announced a 17-day national lockdown (“firebreak”) from 23 October to 9 November.

James Tamm, Director of Legal Services at employment law and HR support firm Ellis Whittam, answers some common questions from employers regarding the impact on businesses and employment:

Can I stay open? 

If you are not on the list of businesses which are required to shut, and your workplace is COVID-secure, then yes you can stay open. A full list of businesses which are required to close temporarily has not been published yet. Please refer to the GOV.Wales work FAQs for the latest information.

What do I need to do now?

If you are permitted to stay open, review your COVID-19 risk assessment and make sure that employees cannot work from home. Employees must only come into a workplace if there is a genuine business need that requires them to do so and no viable alternative.

If you are required to close, you will need to put plans in place to safely shut your workplace temporarily for this period. This could include making machinery safe for a long period of unuse, draining water systems and thinking about the security of your site. The Empty Building Checklist on Ellis Whittam’s free Coronavirus Advice Hub can help with this task.

You will then need to plan ahead for eventual reopening, as you will likely have done previously. There are various documents available on the Hub to help, including our Reopening Checklist and various risk assessment templates to help you maintain a COVID-secure workplace. 

What support is available?

Until 31 October, employees can access the Job Retention (furlough) Scheme as long as they are eligible, i.e. have previously been furloughed for at least three consecutive weeks prior to 30 June 2020, and the employer makes a contribution of 20%.

From 1 November until 9 November, employers can claim under the Job Support Scheme, as long as the business is instructed to close. This will be for two-thirds of salary capped at £2,100 per month (so 67% rather than 80% of salary). We still await details of how this will work. Please see our Job Support Scheme FAQ on the Hub, for answers to common questions based on what we know so far.

Every business covered by the small business rates relief is eligible for a £1,000 payment.

Small and medium-sized retail, leisure and hospitality businesses which have to close will be eligible for a one-off payment of up to £5,000.

What can I do between now and 1 November in regard to employees who haven’t been furloughed previously?

Your options in this scenario would be as follows:

• Have employees work from home if at all possible.
• Ask these employees to take annual leave. Employers can force employees to take annual leave but are required to give at least twice the amount of notice as the period of leave they are required to take (e.g. two weeks’ notice for a one-week holiday). Given the proximity of the lockdown, there is not enough time to insist that the whole period is taken as holidays.
• If you have a lay-off clause in your contract, you can tell them to remain at home on nil pay.
• You could agree a period of unpaid leave.

With secondary schools closed for pupils in year nine and above, what can I do about staff who are unable to work due to childcare arrangements?

Employees are permitted unpaid emergency time off to arrange care for dependants. This is usually time off to arrange care, not to take care, so normally limited to 24/48 hours, although this will depend on the circumstances. Given current coronavirus restrictions, it may be permissible for longer periods of emergency time off to be taken. Alternatively:

• You could agree that they take annual leave.
• The employee could take unpaid leave. If the closure is as a result of an instruction from the government, we do not believe there would be any right to pay during time off.
• From 1 November, they may be eligible to receive two-thirds of their normal salary under the terms of the Job Support Scheme.