Self-isolation and statutory sick pay from first day of absence
In addition to the new regulations that came into force on March 13 2020 (announcing that those who self-isolate with symptoms of coronavirus in accordance with NHS published guidance are now entitled to claim statutory sick pay), the Coronavirus Act enables the government to make further changes so that statutory sick pay can now be paid from the first day of absence – rather than from day four, which is currently the case. This is only applicable where an employee’s incapacity for work is related to coronavirus.
The current Public Health England guidance is as follows:
- If someone has symptoms (a high temperature and/or new continuous cough), however mild, and lives alone, they must self-isolate for 7 days from the first day that the symptoms started.
- If someone lives in a household and is the first to have symptoms, they must self-isolate for 7 days. Everyone else in their household must self-isolate for 14 days.
- If anyone else in the household starts displaying symptoms, the person with the new symptoms must self-isolate for 7 days. This is regardless of where they are in the 14-day isolation period.
If an employee has been diagnosed with coronavirus then they will be entitled to sick pay in the usual way.
As an employer, what will these changes mean for my business?
Statutory sick pay is currently paid by and funded by the employer, but the new Act provides for any coronavirus-related statutory sick pay to be funded by the state, although this will still be paid by the employer.
Where employees are absent from work due to COVID-19, statutory sick pay is now payable from day one of the employee’s absence, where their incapacity to work is related to coronavirus. To qualify, the employee’s first day of incapacity for work must have arisen on or after 13 March 2020.
In terms of whether an employee is deemed incapable of work, the new statutory sick pay regulations state that a person is deemed incapable of work where they are:
“(i) isolating himself from other people in such a manner as to prevent infection or contamination with coronavirus, in accordance with the schedule; and
(ii) by reason of that isolation is unable to work.”
The ‘schedule’ referred to above is a schedule to the regulations and states that a person is deemed to be incapable of work (because they are self-isolating to prevent infection from COVID-19) where:
- they have symptoms of COVID-19, however mild, and are staying at home for seven days, beginning with the day on which the symptoms started (“day one”);
- they live with someone who is self-isolating (as above) and are staying at home for 14 days, beginning with day one; or
- they are already self-isolating in accordance with the second bullet (above), develop the symptoms of COVID-19 themselves, however mild, and are staying at home for seven days, beginning on the day the symptoms started.
HMRC will now make regulations setting out the extent of this funding, including whether this can be paid in advance or in arrears, and for statutory sick pay to be backdated to cover incapacity for work falling on or after 13 March 2020.
Are there any restrictions?
Although regulations in relation to this are yet to come into force, the Chancellor had previously announced that statutory sick pay would be limited to two weeks per eligible employee and that funding will only be available to businesses with less than 250 employees as of 28 February 2020. The regulations are expected shortly.
Can we insist upon sick notes being provided by employees?
A sick note is not required for the first seven days of sickness absence. After that, employers can require a sick note from the employee’s GP. However, it’s sensible for businesses to use their discretion regarding employees being in a position to submit sick notes. In view of the Public Health England advice for individuals not to attend GP surgeries or hospitals with suspected cases of the virus, it may be that employees are unable to obtain a sick note. Therefore, it is advisable to exercise discretion and to not demand sick notes to evidence diagnosis or a period of self-isolation.
That said, on-line isolation notes can be used by employees to their employers to provide evidence that they have had to self-isolate.
What if an employee isn’t sick but needs to care for a sick or quarantined child or other dependent?
Employees are entitled to unpaid time off work to care for a dependent in an unexpected emergency. Clearly a child or other dependent who has been diagnosed with coronavirus would fall into this category.
How you pay your employees in this situation depends upon the facts and how your business wishes to approach the situation. If the employee requires time off to care for a dependent (and the employee is fit and well), they would usually have time off unpaid. However, if an employee is caring for a dependent who has been diagnosed with coronavirus, they will also need to self-isolate and. Again, it is sensible to exercise discretion and pay sick pay to prevent your employees from seeking to attend the workplace (if this is applicable) in between caring for the dependent, if they are not receiving pay.
What should I do to prepare?
Further legislation is still required to bring these measures into force. However, as we expect these to be implemented imminently, employers should start putting policies and procedures in place now to deal with these situations.
The team here is monitoring the situation carefully and will provide updates as soon as more detail is known. In the meantime do not hesitate to contact a member of your local employment team
For advice or guidance on any other legal issue, a member of our team can help – please click here to discuss.