Lewis Silkin, the UK member firm of Ius Laboris, answers some of the most frequently asked questions about absence and sick pay in the UK during the ongoing COVID-19 pandemic
The government has set out its ‘roadmap’ for gradually easing the 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 in this context.
Do we have to pay employees who are off sick with diagnosed COVID-19?
Yes, employees will be entitled to the employer’s usual sick leave and pay provisions, including SSP. Even if the employee only has mild symptoms, under government guidance, they must self-isolate for seven days at home and are entitled to SSP.
Do we have to pay employees who are off sick with COVID-19 symptoms but have not been diagnosed?
Yes, if the employee has symptoms which mean they are too unwell to come to work, they will be entitled to the employer’s usual sick leave and pay provisions, including SSP.
How much is SSP and can we reclaim it?
From 6 April 2020, employees can get GBP 95.85 per week (previously GBP 94.25) SSP for up to 28 weeks.
The Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) Regulations 2020 have 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).
The chancellor announced on 17 March that the government will reimburse employers with fewer than 250 employees any COVID-19-related SSP they pay to employees for the first two weeks of sickness, backdated to 14 March. The Coronavirus Statutory Sick Pay Rebate Scheme was launched on 26 May, and HMRC has issued guidance on how to claim back SSP paid to employees due to coronavirus (COVID-19).
How do we 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 GP for longer absences. However, this may not be practical while the NHS is so over-stretched and GP practices are only able to offer 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 someone 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 we expect it to be extended to employees who have received a notification to self-isolate through the NHS test and trace system.
How do I 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 on 22 May (dated 20 May), which has clarified the issue.
If an employee becomes sick while on furlough, it is up to the employer to decide whether to move them to SSP or to 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 onto SSP, the employer will have to 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. 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. For more detail see our FAQs for employers on the coronavirus job retention scheme.
Do we have to pay employees who aren’t actually sick but are self-isolating according to medical/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) (No. 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 who is in self-isolation in these circumstances can get SSP. That individual does not have to 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) (No. 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 only applies to those who cannot work because of self-isolation, so people who can continue to work from home will not be entitled to SSP. If the employee is able to work remotely, they will be entitled to usual pay.
Employers will need to 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 actually 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 the household of 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 their pregnant employee. Employers will need to be flexible, for example by allowing pregnant employees to be furloughed or to 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 to 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. There is also a right to be suspended on full pay if the risks cannot be avoided and there is no suitable alternative work. If the period of suspension 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, people with respiratory conditions or other underlying health conditions?
Employers have a duty to 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.
The NHS in England has directly contacted people with some clinical conditions which put them at 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.
In our view, you are not required to pay a vulnerable employee who is not willing to return to work unless they have a reasonable belief that they are in serious and imminent danger. We consider, however, that 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 you would prefer them to remain at home, they are entitled to full pay.
For more detail see our FAQs on staffing decisions when reopening workplaces.
Do we have to pay employees if we ask them not to attend work because they have symptoms or should be self-isolating?
An employer may need to ask employees not to attend work if they do not follow medical/government guidance about a recommended self-isolation period.
If the employee is self-isolating in accordance with the SSP regulations (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.
It is strongly arguable that an employee who is not sick but falls within this guidance is not ‘able’ 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. Employers may, however, 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 is asked not to attend work, they will be entitled to the 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 the employer to go home immediately. For more detail see the Acas Coronavirus (COVID-19) advice for employers and employees if someone has coronavirus symptoms at work
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. The employee will be entitled to SSP if unable to work and may also be entitled to any company sick pay.
The employer 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 of 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 it has a significant impact on the employee’s ability to do day-to-day tasks (for example, working from home where this is possible, going into work where necessary, buying groceries, preparing meals for themselves) they could be disabled under the Equality Act. An employer would then have a duty to make reasonable adjustments to help the employee return to work
What adjustments should we make to 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 (e.g. because they have very 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 the employer 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 the employee’s health may be substantial and of 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. It is important to treat employees consistently in order to minimise the risk of complaints about discrimination or unfair treatment
If an employee has been in contact with a colleague who develops COVID-19 symptoms, do we have to ask the employee to self-isolate? Will they be entitled to pay?
Under the current government guidance, an employee is required to 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. The guidance does not require someone to self-isolate if they have had contact with a person outside their own household who has simply developed COVID-19 symptoms.
This means 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 that person will be asked to self-isolate under the NHS test and trace scheme. In any event, an employer may also wish to undertake a risk assessment for a concerned employee to identify any potential risks. If the identified risks can only be minimised 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 (e.g. 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 to encourage employees to abide by the government advice.
Ius Laboris’ Coronavirus Resource Hub provides information and tools to help employers manage their international workforce in these times of crisis.
Authored by Partner, Karen Baxter and Managing Practice Development Lawyer, Bethan Carney of Lewis Silkin LLP.
