The impact of the COVID-19 (Coronavirus) outbreak in the UK has led to many questions about employees’ entitlement to pay during periods where they cannot work. In this alert we answer some of the most frequently asked questions.
Who is entitled to sick pay?
As with any other illness, a person who is off sick with Coronavirus will be entitled to statutory sick pay (SSP) if their average weekly earnings are above £118. The rules have been amended for this to include people who are incapable of work because they are self-isolating or are social distancing to prevent the spread of Coronavirus in accordance with official guidance.
SSP is the minimum level of sick pay employees are entitled to however, if you offer it, they will be entitled to enhanced sick pay under their employment contract if they are unwell. If employees are self isolating and not unwell, it may be that they are not entitled to contractual sick pay, however, you need to check the specific wording of the employment contract, before making a decision. Most contractual sick pay schemes however envisage an employee being unwell.
SSP is still to be paid from the fourth ‘qualifying day’. The Government has committed to introducing emergency legislation to allow for SSP to be paid on the first day of illness due to Coronavirus. The draft Coronavirus Bill provides for this to have retrospective effect for absences on or after 13 March 2020 but this has not yet come into force. It has also announced that small employers (with fewer than 250 employees) will be reimbursed for any SSP paid to employees in respect of the first 14 days of sickness related to Coronavirus.
SSP is paid at a rate of £94.25 per week for up to 28 weeks.
How do employees certify that they are ill?
If an employee or worker cannot work, they should tell you the reason why they are off and how long they’re likely to be off for. The notification requirements in any absence policies should be complied with. As with any other illness, employees can self-certify for 7 days (including non-working days).
After 7 days, employers can request evidence from their employees. It might be difficult for employees to provide a fit note if they’ve been told to self-isolate for more than 7 days as they cannot attend their GP. However employees can now provide an NHS isolation note instead of a note from their GP as proof they need to stay off work. The Government says that the notes can be accessed through the NHS website and NHS 111 online.
What if someone can’t go to work because they’ve been advised to self-isolate?
The Government advises that those living with someone who displays symptoms of Coronavirus must self- isolate for 14 days. If this person then displays symptoms of Coronavirus, they must self-isolate for at least a further 7 days, regardless of where they are in the 14-day isolation period.
Regulations providing for those who self-isolate in accordance with public health guidance on Coronavirus have been made and came into force on 13 March 2020.
Those who self-isolate in accordance with the official guidance and are unable to work will be entitled to SSP as they are deemed incapable of working.
The Regulations only apply if a person is unable to work because of self-isolation. An employee who works from home should be entitled to be paid their wages.
What if employees cannot come to work for other reasons?
Due to the recent announcement of school closures, employees may need to take care of their children or arrange childcare. Employees may be able to take a reasonable amount of time off for dependants in case of emergencies such as this. There is no entitlement to pay for this period, this is at the employer’s discretion. Given that schools are likely to be closed for some time, this may not be appropriate. Employees may be able to take annual leave to cover part of the closure.
In normal circumstances it would usually not be acceptable for employees to work from home whilst looking after their children. However, in these unprecedented times and as the outbreak escalates, employers will need to take a pragmatic approach in allowing employees to work from home around their childcare responsibilities where possible and perhaps look at alternative patterns of work, e.g. evenings and weekends, when childcare by a partner may be available. Alternatively, employees may take a period of unpaid leave to care for children.
Do we need to pay employees who are sent home to self-isolate?
If an employee can work from home, then they will generally be entitled to their normal pay for doing so. If an employee is not able to work from home, then if you send them home for reasons which fall into Government guidance, i.e. they fall within a category of people who have been advised to self-isolate, then they will fall within the new deemed incapacity rules for SSP. It is therefore likely that they will be entitled to SSP. This will extend to employees who are living with someone with Coronavirus or is displaying symptoms.
If someone is sent home for reasons which are outside of official guidance but are still Coronavirus related, it is likely that they will be entitled to full pay (particularly if they remain able and willing to work) but each case will depends on its own facts so please take further advice.
Lay off and other work
Can employees do other work whilst they are laid off?
In this unprecedented situation, with no obvious examples of this happening in the past, we cannot see any reason why an employee would not be able to offer their services elsewhere, subject to any clauses in their contracts of employment preventing other work or with the express permission of their employers. Please note that during this time, some employers such as supermarkets and the NHS are looking for temporary workers. It would be worth checking locally to see whether any organisations are in need and signposting employees accordingly.
Please refer to ACAS Advice for Employers and Employees which is updated daily, and provides good practice steps for employers.
Health-related guidance from the National Health Service is available here: https://www.nhs.uk/conditions/coronavirus-covid-19/
Public Health England including, e.g. specific guidance for employers, educational and health-related organisations, and an option to receive updates directly is available here: https://www.gov.uk/government/organisations/public-health-england
This alert does not provide a full statement of the law and readers are advised to take legal advice before taking any action based on the information contained herein.