COVID-19 advice

The information in this blog is correct as at 11 March 2020. For the most up-to-date Employment Law and Health & Safety advice to support your organisation through the COVID-19 pandemic, visit our Coronavirus Advice Hub, which is updated daily and contains a variety of free guidance notes, letter templates, checklists, risk assessments and more.

With the UK braced for a surge in coronavirus cases, the government has announced a rethink of usual statutory sick pay (SSP) rules.

Forming part of its strategy to contain the rapidly expanding outbreak, eligibility requirements for SSP will be relaxed, entitling workers to pay from day one of sickness absence rather than day four. This amendment will be introduced through temporary emergency legislation, which is yet to be published.

We answer some of the questions employers may have at this stage regarding coronavirus-related sickness absence and pay.

Why the change in SSP rules?

The proposed changes are intended to prevent the spread of the virus by and enabling workers to take time off work where necessary, without losing out financially. This follows Boris Johnson’s statement that those who self-isolate are helping to protect others and should not be “penalised for doing the right thing”. By removing pay anxiety, it is hoped that workers will be more willing to act on instructions to self-isolate.

Who do the amended rules apply to?

It is understood that the right to receive SSP from day one will apply to both:

  • Workers who have been diagnosed with COVID-19; and
  • Workers who are not experiencing any symptoms but have been advised by a medical professional to self-isolate.

In the latter case, despite not being sick, these individuals would be eligible for SSP by reason of deemed incapacity.

Acas advises that if your organisation offers contractual sick pay, it’s good practice to pay this.

What about those who aren't normally entitled to SSP?

After the proposals were announced in a press release issued by the DWP on 5 March, the CBI, a a UK business organisation representing 190,000 businesses, put forward a range of additional measures to ensure all workers are eligible for SSP while the outbreak continues.

In its own press release, the CBI urged to government to extend SSP to all workers who self-isolate in accordance with public health guidance, including those who:

Are agency staff or on flexible or zero-hour contracts, who would not normally be eligible.
Are not displaying symptoms (while it is thought that this will be the case, the CBI want this to be clarified in law).
Don’t have a sick note from a medical professional (indeed, if a worker is self-isolating, they may not be able to get one).
Earn less than £118 per week (the current eligibility threshold).

The TUC has echoed these proposals, stressing that 2 million workers are currently not eligible for SSP. Describing the DWP’s announcement as “an important step forward” but “not enough”, it put forward a range of additional measures to help workers afford to self-isolate. These include:

  • Increasing the amount of SSP to the equivalent of the National Living Wage (£8.21, increasing to £8.72 from 6 April 2020); and
  • Requiring those who are asked by their employer to self-isolate on public health grounds to be paid their full rate of pay.

The TUC has reiterated that current SSP eligibility criteria in relation to the lower earnings limit and employment status will disproportionately impact these individuals who “cannot afford not to work”. Echoing Boris Johnson’s sentiment, it has urged the government to “go further to ensure that no one is penalised for doing the right thing”.

Who will foot the bill?

In his first budget speech on 11 March 2020, Chancellor Rishi Sunak announced that sick pay will be available for employees “who are advised to self-isolate” due to coronavirus, even if they have not displayed symptoms. In addition, it was also confirmed that the government will reimburse small employers (<250 employees) any statutory sick pay they pay to employees, for the first 14 days of sickness.

When is a person deemed to be on sick leave for the purposes of SSP?

Our understanding is that once workers receive confirmation that they are to self-isolate, they will be on sick leave and therefore entitled to SSP. This is much like in usual circumstances, where individuals will be on sick leave once they are issued with a sick note.

However, it is not yet clear how absences should be treated in the period between a worker being sent home and them obtaining confirmation from their GP or the NHS 111 advice line service to self-isolate. Advice from PLC suggests workers may be entitled to sick or full pay regardless of whether they have obtained medical confirmation. However, to say the employer could treat this period as sick leave appears to be at odds with other legal guidance which suggests that the question is whether the person is willing and able to work.

Until there is government confirmation on this point, it is arguable that in these circumstances, unless/until the worker gets confirmation to self-isolate and/or falls ill, absence should be treated as suspension on full pay. Other options may be available, such as holidays or lay-offs. Alternatively, in the absence of any government guidance, employers may wish to treat this as sickness absence, although this is a risky approach to take.

What should I do now, if temporary legislation hasn’t yet been introduced?

Given that neither day-one SSP, the right to claim SSP for self-isolation or the reimbursement of SSP for smaller employers has yet to be implemented by legislation, the “old rules” still apply. However, we will of course update you as soon as that changes.

Director of Legal Services

James Tamm

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