With the Coronavirus situation rapidly evolving, UK employers are becoming increasingly aware that they need to be prepared to handle the situation however it develops. This could involve anything from requiring staff to self-isolate when returning from the rapidly expanding list of affected areas, to forced closure of workplace for an indefinite period.
One of the key questions employers are currently asking is whether and what to pay staff when they stay at home due to coronavirus. Some of the information in the media is confusing and contradictory and the answer depends on the circumstances. This includes, where the employee is self-isolating, who (whether the employer or the medical practitioner) is telling the employee to self-isolate. Our previous article (written on 19 February 2020) gives some guidance on this question but we expand on this below.
Since writing that article, there have been a few developments:
1. The government has announced that it will make a temporary change to the eligibility requirements for statutory sick pay (SSP). This will mean that SSP must be paid from the first day of sickness absence rather than having to wait, as at present, for the first three qualifying days in any period of work for people who have COVID-19 or have to self isolate in accordance with government guidelines.
2. According to the Budget Report, SSP will be temporarily extended to cover:
- individuals who are unable to work because they have been advised to self-isolate by a medical practitioner (even if they are not ill)
- people caring for those within the same household who display COVID-19 symptoms and have been told to self-isolate.
3. Small and medium sized businesses with fewer than 250 employees will be able to reclaim the cost of paying COVID-19 related SSP for up to two weeks per employee.
4. The government has issued guidance to employers advising them to use their discretion not to require a GP fit note for COVID-19 related absences, but to keep records of staff absences. There will also be a temporary alternative to the fit note in the coming weeks which can be used for the duration of the COVID-19 outbreak. This system will enable people who are advised to self-isolate to obtain a notification via NHS111 which they can use as evidence for absence from work, where necessary. This notification would meet employers' need for evidence, whilst taking pressure away from GPs.
5. Self-employed people and employees below the Lower Earnings Limit are not entitled to SSP, but will receive support through the welfare system by making it quicker and easier to receive benefits:
- 'New style' Employment and Support Allowance will be payable for people directly affected by COVID-19 or self-isolating according to government advice from the first day of sickness, rather than the eighth day
- people will be able to claim Universal Credit and access advance payments where they are directly affected by COVID-19 (or self-isolating), without the current requirement to attend a jobcentre
- for the duration of the outbreak, the requirements of the minimum income floor in Universal Credit will be temporarily relaxed for those directly affected by COVID-19 or self-isolating according to government advice for duration of the outbreak, so that selfemployed claimants will be compensated for losses in income.
- SSP will be payable for employees who earn at least £118 per week, if they sick and are off work due to suspected Coronavirus symptoms. Whether they are entitled to any company sick pay will depend on their employment contract and their employer's sick pay policy.
- SSP is also payable where an employee is deemed incapable of work. This might be where they are advised by a doctor or by NHS 111 in writing or is acting in accordance with government guidance to self-isolate due to the risk of Coronavirus even though they are showing no symptoms and are not sick. Whether the employee is entitled to any additional company sick pay will depend on the employer's sick pay policy. In practice, some employers may choose to pay in full in any event. Acas guidance provides that if the employer offers contractual sick pay, it's good practice to pay this.
- An employee's right to pay where their employer sends them home from work will depend on the precise circumstances of that decision. There will be a number of reasons why an employer requires an employee to not attend the workplace. Where an employer requires an employee to stay at home and self-isolate then staff would normally be entitled to be paid their usual pay. This is because they are "ready, willing and able" to attend the workplace. An exception to this is if there is a contractual right to suspend without pay but this would be unusual. For employees who are well but recommended to self-isolate under government guidance the position as regards the right to normal pay is less clear – if their employer asks the employee to attend work in conflict with government guidance, and the employee declines, the employer may be released of the obligation to pay.
- It appears from the Budget Report that the Government is intending to extend SSP to cover people caring for those in the same household as them who display COVID-19 symptoms and have been told to self-isolate. If this is the case, and we will need to wait to see the draft legislation on this for clarification, it means that employees may be entitled to SSP even if they themselves are not ill or advised to self-isolate, where they need to take time off work to care for a child or family member who is displaying symptoms and has been advised to self-isolate.
- Employees have a right to ask for unpaid emergency time off to care for dependents. This right can be used, for example, where a school is closed and an employee needs to take time off work to care for their child. Some employers might allow the time to be taken as paid holiday but there is no obligation to do so. Employees may be able to take the time as statutory parental leave depending on the circumstances of the case.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.