Sickness absence and sick pay during the Covid-19 pandemic - FAQs for employers
07 October 2021
This article answers some of the most frequently asked questions about sickness absence and sick pay during the ongoing Covid-19 pandemic, including the rules on statutory sick pay and the position of people who are self-isolating or otherwise vulnerable.
What is SSP and when does someone qualify for it?
The statutory sick pay (SSP) scheme entitles qualifying employees to receive a weekly SSP payment. In order to qualify for SSP, an employee must be absent from work due to incapacity. However, the SSP regime has been amended on numerous occasions as the pandemic has progressed. These changes are primarily aimed at extending eligibility to SSP to those who are self-isolating in accordance with government guidance but may not necessarily have symptoms of Covid-19.
The Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) Regulations 2020 have removed the three-day waiting period for payment of SSP for employees whose period of incapacity for work is related to Covid-19. Despite this change, SSP will only be payable if the employee has self-isolated for at least four days. If the relevant person (either the employee or the person in their household who had symptoms) receives a negative Covid-19 test result within the first three days of self-isolation and the self-isolation ends, that absence would not form part of a period of incapacity for work.
How much is SSP and can we reclaim it?
From 4 April 2021employees can get £96.35 per week SSP for up to 28 weeks.
Employers with fewer than 250 employees can reclaim any Covid-19-related SSP they pay to employees for the first two weeks of sickness. The Coronavirus Statutory Sick Pay Rebate Scheme was launched on 26 May 2020, and HMRC has issued guidance on how to claim back SSP paid to employees due to coronavirus (Covid-19).
How do we get evidence that someone is ill?
The normal process for most employers would be to allow self-certification for seven days and require a fit note from a GP for longer absences. This may not be practical while GP practices are only able to offer limited appointments, and it may be necessary to relax requirements for evidence of illness.
There is a new system which allows employees who have been advised to self-isolate to obtain an online isolation note. This can be used to provide evidence of the need to self-isolate when someone is absent for more than ten days due to having symptoms of Covid-19, is self-isolating for ten days because they live or are in a support bubble with someone who has symptoms or has received a notification to self-isolate through the NHS Test and Trace service.
Do we have to pay employees who are off sick with diagnosed Covid-19?
Yes, employees will be entitled to the employer’s usual sick leave and pay provisions, including SSP. Even if the employee only has mild symptoms, under government guidance they should self-isolate and arrange to have a PCR test. Anyone who has been notified of a positive test result is legally required to self-isolate for ten days at home and is entitled to SSP.
Do we have to pay employees who are off sick with Covid-19 symptoms but have not been diagnosed?
If the employee has symptoms which mean they are too unwell to come to work they will be entitled to the employer’s usual sick leave and pay provisions, including SSP.
If an employee has very mild Covid-19 symptoms and might otherwise be tempted to try to attend work, government guidance requires them to self-isolate and they would be entitled to SSP if they can’t work from home.
SSP entitlement is subject to the following:
- SSP is not generally payable during the first three qualifying days of sickness, known as “waiting days” but this provision has been disapplied for Coronavirus cases.
- Irrespective of the change to the “waiting days” provision, employees must still have a total period of incapacity for work of at least four days to be eligible for SSP.
In practice, this means that if someone is off sick with Covid-19 symptoms and is subsequently diagnosed with Coronavirus, they are entitled to SSP from the first day of sickness. If they are sick for three days or fewer and receive a negative Covid-19 test result in that time, they would not be entitled to SSP. If they are sick for more than three days but do not have Coronavirus, they would be entitled to SSP under the usual (non-Covid) rules and would not receive SSP for the first three “waiting days”.
Do we have to pay employees who aren’t actually sick but are self-isolating according to medical/government advice?
Yes. The SSP regulations have been amended several times since March 2020 to widen entitlement to SSP. The following categories of people are currently entitled to SSP under the amended SSP Regulations:
- Anyone self-isolating for the mandatory ten-day period with Covid-19 symptoms.
- Anyone self-isolating for the mandatory ten day period due to living with or being in a linked or extended household (a “support bubble”) with someone who has symptoms or tested positive for Covid-19. The definition of a linked or extended household varies between England and the devolved nations. A linked household in England (or an extended household in Scotland) is where a single adult or a single parent with children under the age of 18 have chosen to be linked together with another household. In Wales, an extended household means two households that have agreed to be treated as a single household..
- A clinically extremely vulnerable person who is “shielding” and has a current shielding notification letter. (Note that shielding in England ends on 31 March 2021).
- Anyone who has been officially notified that they should self-isolate under the NHS Test and Trace service (because they tested positive or have been identified as a close contact of someone who tested positive) and is not able to work remotely.
- Anyone (unable to work from home) who has received written notification that they will be undergoing a medical procedure in hospital and have been advised to self-isolate for a period of up to 14 days before their admission.
From 16 August in England (and earlier in Wales), individuals who have had close contact with someone who has tested positive will not be legally required to self-isolate if any of the following apply:
- They are fully vaccinated;
- They are below the age of 18;
- They are part of an approved COVID-19 vaccine trial; or
- They are not able to get vaccinated for medical reasons.
They will be advised to take a PCR test as soon as possible instead.
Employers will need to consider whether to apply the new SSP rules to company sick pay as well. This will depend on the wording of the company sick pay rules – some schemes may be linked to SSP, while others may require an employee actually to be ill. There are also practical reasons why an employer may choose to provide enhanced pay (or perhaps even full pay) in this situation, including ensuring that employees comply with the government guidance and/or legal requirements and do not try to come to work (see below). It is important to treat everyone consistently in order to avoid grievances or claims of discrimination.
Do we have to pay employees who are self-isolating because they have been notified by the NHS Covid-19 App?
Employees who have been officially notified by the NHS Test and Trace service or a local authority contact tracing team that they must self-isolate because they have been in close contact with someone who has tested positive for Covid-19 are legally required to self-isolate for ten days and are entitled to SSP. As noted above, fully vaccinated employees are no longer required to self-isolate in this situation.
In our view, employees are not entitled to SSP merely because they have received an automated alert from the NHS Covid-19 app that they have been in contact with someone who has Coronavirus. Although the app will say that they should self-isolate and take a test, this has only ever been advisory and precautionary. The wording of the SSP regulations does not appear to cover this scenario and the legal requirement to self-isolate does not apply in these circumstances.
What if employees want to come to work when they are legally required not to do so?
In England, it is now an offence for an employer to knowingly allow staff (including agency workers) to come to work if they have been required to self-isolate because they have tested positive for Covid-19 or have been officially notified by NHS Test and Trace that they have been in contact with someone who has.
There is also a legal requirement for both employees and agency workers to notify their employer that they are required to self-isolate and for how long.
What is the position for employees who are clinically extremely vulnerable?
People with certain specific conditions (set out in public health guidance) have been identified as clinically “extremely vulnerable” to coronavirus. These individuals are eligible for SSP if they are advised to shield, provided they have an up to date shielding notification letter and are unable to work from home. However, shielding has been paused in England with effect from 1 April 2021. The position as regards their entitlement to pay is now the same as for other clinically vulnerable individuals, as described below. .
What about older people, people with respiratory conditions or other underlying health conditions but who are not classified as clinically extremely vulnerable?
The government and NHS no longer provides any specific guidance for people who may be clinically vulnerable to coronavirus, but are not clinically “extremely” vulnerable (such as those with certain underlying health conditions or those over 70). There is no entitlement to SSP for employees who are clinically vulnerable if they decide to shield at home (unless they fall within one of the eligible categories for self-isolating or sick employees outlined above).
In our view, you are not required to pay a vulnerable employee who cannot work from home but who is not willing to come to work unless they have a reasonable belief that they are in serious and imminent danger that they cannot avert in another way. Despite this, the cautious approach would be to allow vulnerable employees to remain on unpaid leave. For more detail see our FAQs on staffing decisions when reopening workplaces.
What about pregnant employees who do not want to come to work because they are vulnerable?
The government has released separate advice for pregnant employees. Pregnant women with significant heart disease are treated as clinically extremely vulnerable, but most pregnant women are not. As a result, pregnant employees who choose to stay at home even though they cannot work from home are not entitled to SSP, unless they fall within one of the eligible categories for self-isolating or sick employees outlined above.
The government advice for pregnant employees contains recommendations for women less than 28 weeks pregnant, and those who are over 28 weeks pregnant and/or have underlying health conditions resulting in greater risk from coronavirus.
Women less than 28 weeks pregnant with no underlying health conditions should:
- only continue working if a risk assessment advises it is safe to do so;
- ensure they are able to follow any active national guidance on social distancing; and
- be supported by their employer with appropriate risk mitigation in line with recommendations to staff arising from workplace risk assessment.
Women over 28 weeks pregnant and/or with underlying health conditions should:
- adhere to any active national guidance on social distancing
- be considered for redeployment or opportunities to maximise homeworking wherever possible.
If working from home is not feasible, employers should discuss the position with their pregnant employee. Employers will need to be flexible, for example by allowing pregnant employees to take a period of unpaid leave.
There are also specific health and safety obligations towards pregnant employees. These include an obligation to carry out a pregnancy risk assessment and to alter working conditions or hours to avoid any significant risk. It may be possible to do this by taking extra precautions for example to enforce safe distancing or otherwise reduce the risk of transmission in the workplace.
There is also a right to be suspended on full pay if the risks cannot be avoided and there is no suitable alternative work. If the period of suspension continues into the fourth week before the expected week of childbirth, or the employee is ill after the start of the fourth week, this will trigger the commencement of maternity leave. This right to be suspended on full pay does not apply to other vulnerable employees, and in practice means that pregnant employees are treated differently than other vulnerable people.
What should an employer do if someone at work displays Covid-19 symptoms?
The employee should be asked by the employer to go home immediately. For more details, see Acas’s advice on this.
Where an employee is instructed to go home but is well enough and able to work from home they will be entitled to normal pay. The employee will be entitled to SSP if unable to work and may also be entitled to any company sick pay.
The employer should take steps to clean the workplace thoroughly to avoid a potential spread of the infection. Guidance is available on how to clean a non-healthcare workplace.
Is someone who has had Covid-19 disabled within the meaning of the Equality Act?
Possibly. It depends on the impact of the infection has or is likely to have on the employee. If the impact of the infection is long-term (with an actual or likely duration of 12 months or more) and it has a significant impact on the employee’s ability to do day-to-day tasks (for example, working from home where this is possible, going into work where necessary, buying groceries, preparing meals for themselves) they could be disabled under the Equality Act. An employer would then have a duty to make reasonable adjustments to help the employee return to work. For more information see our article on Long Covid.
What adjustments should we make to our sickness policies in light of Covid-19?
Employers should be clear about employees’ entitlement to company sick pay under their applicable policies. Many employer policies require their employees to be sick rather than unable to work to qualify for company sick pay. Many employees may not actually be too sick to work (e.g. because they have very mild symptoms or are self-isolating) and may be keen to return to the workplace for fear of not receiving enhanced sick pay. Employers may wish to consider amending their policy to entitle employees to company sick pay in order to encourage them to comply with the law and government guidance. Employers operating workplace testing schemes should think carefully about amending their policies to ensure that employees do not lose out financially if they test positive whilst participating in the scheme – an issue we explore in our Workplace testing FAQs.
Employers may also wish to consider adjusting their policies to discount any Covid-19 related sickness absence from attendance management procedures. This may be particularly important where the impact of the infection on the employee’s health may be substantial and of long-term duration (12 months or more) as it could give rise to disability discrimination claims. The Test and Trace service may also require employees to self-isolate more than once, and employers will need to consider whether to count these periods as sickness absence. If they do count, employees may be less inclined to follow the advice to self-isolate.
It is important to treat employees consistently in order to minimise the risk of complaints about discrimination or unfair treatment.
Now double-vaccinated employees are exempt from the obligation to self-isolate if they are identified as a close contact of a positive case, employers may start to reconsider their policy on full company sick pay for self-isolation. Some employers may want to consider withdrawing company sick pay from employees who have been able to take the vaccine but chosen not to do so, with the result that they are required to self-isolate. It would be inadvisable to take that approach until adults of all ages have had a chance to take the vaccine (or it could be unjustified age discrimination) and employers would need to consider the general risks of discrimination clams and making case by case exemptions to accommodate, for example, medical conditions. Employers may also want to maintain full company sick pay to ensure unvaccinated employees do not ignore the obligation to self-isolate and risk infecting others by coming to work.
If an employee has been in contact with a colleague who develops Covid-19 symptoms, do we have to ask the employee to self-isolate? Will they be entitled to pay?
Employees who have been in contact with a colleague who develops symptoms are only legally required to self-isolate if they are officially notified under the NHS Test and Trace service that they should do so.
This means there is no legal requirement to ask employees who have been in contact with a colleague who develops symptoms to self-isolate. However, if the colleague tests positive for Covid-19, it is likely that employees who have worked closely with that person will be asked to self-isolate under the NHS Test and Trace service (unless they are fully vaccinated). And the government’s Working Safely guidance also advises employers to identify close workplace contacts and ask them to self-isolate unless they are exempt from self-isolation. An employer may also wish to undertake a risk assessment to identify any potential risks. If the identified risks can only be minimised by sending the employee home and the employee is unable to do their work from home, they will be entitled to their normal pay if they are asymptomatic and not required to self-isolate by NHS Test and Trace. If they develop symptoms or are legally required to self-isolate under the NHS Test and Trace service, they will be entitled to SSP (and possibly company sick pay if applicable to this situation).
Are there any additional payments workers may be entitled to if required to self-isolate?
Since 28 September 2020, some employees who cannot work from home and are claiming certain benefits may be entitled to a one-off payment of £500 through the Test and Trace Support Payment scheme if they are required to stay at home and self-isolate. The payment is made directly to the claimant by their local authority and not by the employer. Employers may wish to publicise the scheme as an incentive to prevent staff coming into the workplace when unwell or required to self-isolate.
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Absences & Pay
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