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03 June 2020
The government has set out its roadmap for gradually easing the COVID-19 lockdown restrictions, but as employees begin to return to work, there will continue to be many individuals who are unwell or required to self-isolate.
This article answers some of the most frequently asked questions about sickness absence and sick pay during the ongoing COVID-19 pandemic, including the rules on statutory sick pay (SSP) and the position of people who are self-isolating, shielding or otherwise vulnerable.
Do employers have to pay employees who are off sick with diagnosed COVID-19?
Yes, employees will be entitled to their employer's usual sick leave and pay provisions, including SSP. Even if the employee has only mild symptoms, under government guidance they must self-isolate for seven days at home and are entitled to SSP.
Do employers have to pay employees who are off sick with COVID-19 symptoms but have not been diagnosed?
Yes, if employees have symptoms which mean they are too unwell to come to work they will be entitled to their employer's usual sick leave and pay provisions, including SSP.
How much is SSP and can employers reclaim it?
From 6 April 2020, employees can receive £95.85 per week (previously £94.25) SSP for up to 28 weeks.
The Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) Regulations 2020 removed the three-day waiting period for payment of SSP for employees whose period of incapacity for work is related to COVID-19 (backdated to 13 March 2020).
On 17 March 2020 the chancellor of the exchequer announced that the government will reimburse employers with fewer than 250 employees for any COVID-19-related SSP they pay to employees for the first two weeks of sickness, backdated to 14 March 2020. The Coronavirus Statutory Sick Pay Rebate Scheme was launched on 26 May 2020 and Her Majesty's Revenue and Customs (HMRC) has issued guidance on how to claim back SSP paid to employees due to COVID-19.
How do employers get evidence that someone is ill?
The normal process for most employers would be to allow self-certification for seven days and require a fit note from a general practitioner (GP) for longer absences. However, this may not be practical while the National Health Service (NHS) is so over-stretched and GP practices can offer only limited appointments, and it may be necessary to relax requirements for evidence of illness.
There is a new system which allows employees who have been advised to self-isolate to obtain an online isolation note. This can be used to provide evidence of the need to self-isolate when an employee is absent for more than seven days due to having symptoms of COVID-19 or is self-isolating for 14 days because they live with someone who has symptoms, and it is likely that it will be extended to employees who have received a notification to self-isolate through the NHS test and trace system.
How do employers pay an employee who is furloughed but is also sick?
This was originally unclear because the Treasury Direction on the furlough scheme and HMRC guidance conflicted on this point. However, the government published an updated Treasury Direction on 22 May 2020 (dated 20 May 2020), which has clarified the issue.
If an employee becomes sick while on furlough, it is up to their employer to decide whether to move them to SSP or keep them on furlough. If the employee remains on furlough, the employer can continue to claim their salary through the furlough scheme. If the employee is moved to SSP, the employer must pay this and can no longer claim their salary through the furlough scheme.
The guidance and Treasury Direction (as amended) also clarify the position on calculating furlough pay if an employee returns from sick leave after 19 March 2020. This should be calculated against their normal salary, not the pay they received while on sick leave. If the employee is on variable pay, this should be calculated using either the same month's earning from the previous year or average monthly earnings for the 2019-2020 tax year.(1)
Do employers have to pay employees who are not sick but are self-isolating according to medical or government advice?
Yes, if they live with someone who has symptoms, are a clinically extremely vulnerable person who is shielding or they have been notified that they should self-isolate under the NHS test and trace system.
On 28 March 2020 some new SSP regulations came into force (the Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) Regulations 2020). These extend SSP to anyone who is self-isolating to prevent the spread of COVID-19 in accordance with circumstances set out in a schedule at the end of the regulations. The schedule covers anyone who is self-isolating for seven days with COVID-19 symptoms or self-isolating for 14 days because they live with someone who has developed symptoms. Current guidance requires self-isolation for seven days by those who are sick, however mildly.
The guidance also requires self-isolation for 14 days for individuals in the same household as someone with COVID-19 symptoms even if they are well in themselves. If an individual in this situation then starts showing symptoms, they should self-isolate for seven days from when the symptoms started.
On 16 April 2020 new regulations extended SSP to those who are shielding (the Statutory Sick Pay (General) (Coronavirus Amendment) (Number 3) Regulations 2020). This covers people with certain specific conditions (set out in public health guidance) which make them clinically extremely vulnerable and who have been advised by medical professionals to follow strict shielding measures to keep themselves safe. An individual who is otherwise capable of working but is in self-isolation in these circumstances can get SSP. That individual need not have been diagnosed with COVID-19. The changes to the law give all of these individuals, and all those shielding, a right to SSP.
On 27 May 2020 further new regulations extended SSP to those who are self-isolating for 14 days after being notified that they should do so by the NHS test and trace service (the Statutory Sick Pay (General) (Coronavirus Amendment) (Number 4) Regulations 2020). This covers people who are not unwell but have been told to self-isolate because they have been in close contact with someone who has tested positive for COVID-19.
This applies only to those who cannot work because of self-isolation; thus, people who can continue to work from home will not be entitled to SSP. If an employee is able to work remotely, they will be entitled to usual pay.
Employers must consider whether to apply the new SSP rules to company sick pay as well. This will depend on the wording of the company sick pay rules – some schemes may be linked to SSP, while others may require an employee to be ill. There are also practical reasons why an employer may choose to provide enhanced pay (or perhaps even full pay) in this situation, including ensuring that employees comply with the government guidance and do not try to come to work. It is important to treat everyone consistently in order to avoid grievances or claims of discrimination.
What about pregnant employees who do not want to come to work because they are vulnerable?
The government's advice on staying alert and safe (social distancing), issued 11 May 2020, includes those who are pregnant in the list of clinically vulnerable people. The government is advising all vulnerable people to take particular care to minimise contact with others outside their household.
Pregnant employees are not considered clinically extremely vulnerable. As such, a pregnant employee who chooses to stay at home even though they cannot work from home is not entitled to SSP, unless they fall within the government's main guidance to self-isolate because they have symptoms or are in a household with someone with symptoms or they are shielding because they are clinically extremely vulnerable. Pregnant women with significant heart disease are treated as extremely vulnerable for the purposes of SSP, but most pregnant women are not.
If working from home is not feasible, employers should discuss the position with pregnant employees. Employers must be flexible – for example, by allowing pregnant employees to be furloughed or take a period of unpaid leave.
There are also specific health and safety obligations towards pregnant employees. These include an obligation to carry out a pregnancy risk assessment and alter working conditions or hours to avoid any significant risk. It may be possible to do this by taking extra precautions to enforce safe distancing in the workplace. Employees also have the right to be suspended on full pay if the risks cannot be avoided and there is no suitable alternative work. If the suspension period continues into the fourth week before the expected week of childbirth, or the employee is ill after the start of the fourth week, this will trigger the commencement of maternity leave. This right to be suspended on full pay does not apply to other vulnerable employees and, in practice, means that pregnant employees are treated differently than other vulnerable people.
What about older people and people with respiratory conditions or other underlying health conditions?
Employers must protect the health and safety of their staff, which includes taking additional care with employees who are known to be vulnerable. The government's advice on staying alert and safe (social distancing), issued 11 May 2020, gives a list of clinically vulnerable people, which includes those over 70 and those with various underlying health conditions. The government is advising all vulnerable people to take particular care to minimise contact with others outside their household.
In England, the NHS has directly contacted people with some clinical conditions which put them at an even higher risk of severe illness, with advice about the more stringent shielding measures. These people are classed as clinically extremely vulnerable and are entitled to SSP.
Anyone else who is social distancing but not sick is not entitled to SSP – even if they are in a vulnerable group, such as older people.
Arguably, employers need not pay a vulnerable employee who is unwilling to return to work unless they have a reasonable belief that they are in serious and imminent danger. However, alternatives such as paid leave or furlough are currently a better approach for vulnerable employees if they are unhappy about returning to work, given the legal risks. If a vulnerable employee wants to return to work and their employer would prefer them to remain at home, they are entitled to full pay.(2)
Do employers have to pay employees if they ask them not to attend work because they have symptoms or should be self-isolating?
Employers may need to ask employees not to attend work if they do not follow medical and government guidance about a recommended self-isolation period.
If an employee is self-isolating in accordance with the SSP regulations (ie, self-isolation due to symptoms or living with someone who has symptoms or under the test and trace system), they would be entitled to SSP.
Arguably, an employee who is not sick but falls within this guidance is unable to work, because government guidance says they should not. Employers should be able to enforce this guidance. The employee would be entitled to SSP but would not be entitled to full pay if they try to come to work and the employer sends them home. However, employers may choose to pay full pay in these circumstances in order to encourage employees to abide by the government advice.
If an employee is actually sick and asked not to attend work, they will be entitled to their employer's usual sick leave and pay provisions, including SSP.
What should an employer do if someone at work displays COVID-19 symptoms?
The employee should be asked by their employer to go home immediately.(3)
Where an employee is instructed to go home but is well enough and able to work from home they will be entitled to normal pay. They will be entitled to SSP if they are unable to work and may also be entitled to any company sick pay.
Employers should take steps to clean the workplace thoroughly to avoid a potential spread of the infection. Guidance is available on how to clean a non-healthcare workplace.
Is someone who has had COVID-19 disabled within the meaning of the Equality Act?
Possibly, it depends on the impact that the infection has or is likely to have on the employee. If the impact of the infection is long term (with an actual or likely duration of 12 months or more) and has a significant impact on the employee's ability to do day-to-day tasks (eg, working from home where this is possible, going into work where necessary, buying groceries and preparing meals for themselves), they could be disabled under the Equality Act. Employers would then have a duty to make reasonable adjustments to help the employee return to work.
What adjustments should employers make to their sickness policies in light of COVID-19?
Employers should be clear about employees' entitlement to company sick pay under their applicable policies. Many employer policies require their employees to be sick rather than unable to work to qualify for company sick pay. Many employees may not actually be too sick to work (eg, because they have mild symptoms or are self-isolating) and may be keen to return to the workplace for fear of not receiving enhanced sick pay. Employees in this situation would be entitled to SSP, and employers may wish to consider amending their policy to entitle employees to company sick pay in order to encourage them to comply with the government guidance.
Employers may also wish to consider adjusting their policies to discount any COVID-19-related sickness absence from attendance management procedures. This may be particularly important where the impact of the infection on an employee's health may be substantial and of a long-term duration (12 months or more) as it could give rise to disability discrimination claims. The test and trace system may also require employees to self-isolate more than once, particularly once the contact tracing app is being used, and employers will need to consider whether to count these periods as sickness absence. If they do count, employees may be less inclined to follow the advice to self-isolate. Employers must treat employees consistently in order to minimise the risk of complaints concerning discrimination or unfair treatment.
If an employee has been in contact with a colleague who develops COVID-19 symptoms, do employers have to ask the employee to self-isolate? Will they be entitled to pay?
Under the current government guidance, employees must self-isolate if they are showing symptoms or if someone in their household has been diagnosed with or displays COVID-19 symptoms. An employee may also be notified under the NHS test and trace system that they should self-isolate for 14 days because they have been in close contact with someone who has tested positive for COVID-19. Under the guidance, employees need not self-isolate if they have had contact with a person outside their own household who has simply developed COVID-19 symptoms.
Therefore, there is no requirement to ask employees who have been in contact with a colleague who develops symptoms to self-isolate. However, if the colleague tests positive for COVID-19, it is likely that employees who have worked closely with them will be asked to self-isolate under the NHS test and trace scheme. In any event, employers may also wish to undertake a risk assessment for a concerned employee to identify any potential risks. If the identified risks can be minimised only by sending the employee home and the employee is unable to do their work from home, they will be entitled to their normal pay if they are asymptomatic. If they develop symptoms or are asked to self-isolate under the test and trace scheme, they will be entitled to SSP (and possibly company sick pay if applicable to this situation).
If a contact tracing system or app tells an employee to self-isolate, are they entitled to SSP?
Yes, but only if the employee is notified by the NHS test and trace service that they should self-isolate for 14 days because they have been in close contact with someone who has tested positive for COVID-19. This does not apply for other contact tracing systems (eg, one set up privately by an employer).
The system is currently voluntary, but the government has issued NHS test and trace workplace guidance which asks employers to play their part by making their workplaces as safe as possible, and encouraging workers to heed any notifications to self-isolate and supporting them when in isolation. Although not legally required, employers may choose to pay company sick pay or full pay in these circumstances in order to encourage employees to abide by the government advice.
For further information on this topic please contact Karen Baxter or Bethan Carney at Lewis Silkin by telephone (+44 20 7074 8000) or email (email@example.com or firstname.lastname@example.org). The Lewis Silkin website can be accessed at www.lewissilkin.com.
(1) Further information is available here.
(2) Further information is available here.
(3) For more detail see the Acas COVID-19 advice for employers and employees if someone has COVID-19 symptoms at work.
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