One of the key issues for employers is what payments to make to employees if they are unable to work as a result of COVID-19.
Entitlement to Statutory Sick Pay
Where an employee has symptoms of the virus then they must be absent from work. These employees will be entitled to sick leave and sick pay. The government announced on 4th March that emergency legislation will be introduced to ensure that statutory sick pay, or SSP, is payable to employees from day one of the absence instead of day four as set out in the existing legislation. Another change to legislation is 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 due to COVID-19. The provisions will be included in the Coronavirus Bill which the Government intends to take effect from the end of this month. However, the provisions relating to SSP are intended to have retrospective effect to 13 March. These will be temporary changes to respond to the outbreak and will lapse when no longer required. If an employer has contractual sick pay then the employee will be entitled to that payment.
Employees who are required to self-isolate following public health guidance either as a result of either coming into contact with someone who has the virus or has mild virus like symptoms will also be entitled to SSP. The Government has already introduced emergency legislation (the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 ) which clarify that people who are “deemed incapable of work” for SSP purposes includes those who isolate themselves to prevent infection or contamination with coronavirus disease in accordance with guidance published by Public Health England and, by reason of that isolation, they are unable to work. The contractual position is likely to follow suit, but that is not always the case and employers should check the contracts of employment. The guidance for employers issued by Acas suggests that it is good practice for employers to pay any contractual sick pay because otherwise there will be a risk that employees will come to work in order to get paid, increasing the risk of the virus spreading.
Note that these provisions apply to people who are required to self-isolate following public health guidance and are unable to work. If the employee can work from home during this period then they should be paid normally.
Evidence of incapacity to work
As employees who are self-isolating are deterred from visiting the doctors, the Government has now introduced isolation notes which employees can use to provide employers with evidence that they have been advised to self-isolate due to coronavirus, either because they have symptoms or they live with someone who has symptoms, and so cannot work. An employee will still be asked to self-certify as to the reason for their absence during the first seven days off work. After that period employers are able to ask for evidence of sickness absence. Where this is related to having symptoms of coronavirus or living with someone who has symptoms, the isolation note can be used to provide evidence of the advice to self-isolate. The notes can be accessed through the NHS website and NHS 111 online.