Coronavirus (COVID-19) and Employment

17th March 2020

What changes has the Government made to Statutory Sick Pay (SSP)?

Ordinarily to qualify for SSP an employee or worker must be absent from work due to incapacity. This would not normally include a person who is self-isolating without suffering symptoms. However with effect from 13 March 2020, a new piece of legislation provides that a person in self-isolation is deemed incapable of work where he is isolating himself in accordance with advice from Public Health England, NHS Services Scotland or Public Health Wales. A person in quarantine or self-isolation will therefore be regarded as incapable of work for SSP purposes.

Proposed further changes to legislation that are not yet in effect at the time of writing:

  • The government has also announced that it intends to temporarily make SSP payable from the first day of sickness absence.
  • Small employers (those with fewer than 250 employees) will be reimbursed for any SSP paid to employees for the first 14 days of sickness related to COVID-19.
  • It is also intended that a temporary alternative to the fit note (‘sick note’) will be introduced in coming weeks which will enable people advised to self-isolate to meet employer’s requirements for evidence while taking pressure off GPs.

Is an employer entitled to send an employee home from work to self-isolate?

There is unlikely to be an express contractual right to do so, however sending an employee home is unlikely to be a breach of the employment contract. If the employee is able to continue to work from home, then subject to any contractual provision to the contrary, they will be entitled to their normal pay. If an employee is suspended on health and safety grounds that do not fall within the government’s self-isolation advice, it is likely that they have the right to continue to receive full pay. If the employee falls within the circumstances in which public health advice is to self-isolate, then then will be entitled to SSP and the employer could treat them as being on sick leave.

What if an employee refuses to attend work due to fears about COVID-19?

The employer would need to consider current public health advice, and the employee’s specific reason for their concern, for example, do they have a long-term health condition? Depending on the circumstances the employer may consider disciplinary action or withhold pay.

What if an employee needs time off work to look after someone?

Employees are entitled to time off work to look after someone who depends on them in an unexpected event or emergency. There is no statutory right to pay for this time off, but some employers might offer pay depending on the employment contract or workplace policy. The amount of time taken off must be reasonable for the situation – generally no longer than 2-3 days. Any more time needed can be taken as holiday.

Where an employee self-isolates following advice from a medical professional or government guidance, what pay are they entitled to?

Assuming that the employee is not exhibiting symptoms and has not been diagnosed with COVID-19 but cannot work from home, they will still be entitled to SSP and any contractual sick pay.

What pay is an employee entitled to where they have mild respiratory symptoms but no diagnosis of COVID-19?

This will likely bring them within the deemed incapacity provisions mentioned above – and they will be treated as on sick leave and be entitled to SSP or contractual sick pay.

Can workers use holiday to cover periods of absence?

Workers (this includes employees) are entitled to take statutory annual leave during sickness absence, but may not be compelled to do so. Workers not on sick leave can be instructed to take annual leave provided they are given the required level of notice – this is at least twice as many days as the employer needs workers to take.

What should an employer do where an employee starts displaying symptoms at work?

Public Health England and ACAS advise that if the employee has reason to believe that they have been exposed to Coronavirus they should move at least 2 metres away from other people behind a closed door and call NHS 111 from their mobile, or 999 if it is an emergency and follow the advice given. If NHS 111 is unobtainable, advice is available here: https://111.nhs.uk/covid-19.

This note is correct as of 17/3/2020 but may need to be updated in accordance with government advice as time passes.