Employers should note that the official guidance about self-isolation now states that loss of one's sense of smell or taste is a symptom of coronavirus and self-isolation is necessary in those cases. Employers should update their guidance to staff accordingly.
Please also note that the recommended period of self-isolation for those who have had COVID-19 symptoms or have tested positive is now at least 10 days from the test/onset of symptoms.
Will an employee who self-isolates with symptoms of COVID-19 be eligible for sick pay?
An employee who has self-isolated because they are demonstrating symptoms of Coronavirus or has tested positive will be entitled to Statutory Sick Pay (SSP) and whatever additional sick pay is payable under their contract of employment.
The Coronavirus Act introduces two key changes in relation to SSP:
- It gives the government the power to suspend the rule that SSP is not paid for the first 3 days of sickness absence;
- It will enable employers with fewer than 250 employees to reclaim SSP paid for sickness absences relating to coronavirus during the period of the outbreak.
Employers are entitled to place staff receiving SSP on furlough (although only if they would have been placed on furlough regardless of their sickness absence) and in many cases this will be financially advantageous to both employer and employee.
What about an employee who self-isolates but doesn't have coronavirus symptoms?
Contractual sick pay: Contractual sick pay clauses usually state that the employee must be incapable of work to be entitled to sick pay and so may not cover individuals without symptoms: but this will depend on the precise terms of the contract.
Statutory sick pay (SSP): SSP is also only payable for a period of 'incapacity for work', but employees who self-isolate in response to either direction by a medical professional or government guidance and are unable to work are deemed incapable under new rules for SSP (effective from 16 March 2020 and which will remain in force for at least 8 months).
ACAS advise that it is 'best practice' for employers to treat self-isolation as sick leave and pay any contractual entitlement, to minimise infection spread.
What about an employee who has not been required to self-isolate and does not have coronavirus symptoms?
Employees who are self-isolating because a member of their household has symptoms, or who are in one of the vulnerable groups strongly advised to stay at home and who are not able to work from home, are likely to be eligible for SSP under new rules introduced on 16 March 2020.
Outside those categories, it is unlikely that an employee who has not been requested to self-isolate, whether under WHO guidance or a written request by PHE or following a call to 111, and is not demonstrating any of the symptoms of COVID-19, will be entitled to SSP.
How much Statutory Sick Pay is payable?
SSP is £94.25 per week for up to 28 weeks (and will increase to £95.85 per week from 6 April 2020) for qualifying employees.
Under the new changes, SSP will be payable from day 1, rather than day 4 of absence and businesses with fewer than 250 employees will have the cost of SSP for any employee off work for coronavirus for up to 14 days refunded in full.
Are self-employed staff entitled to SSP?
No. However, ACAS and the government have advised employers who utilise self-employed individuals to act leniently towards those individuals and provide them with a payment equivalent to SSP during these unique circumstances. We suggest that businesses consider this carefully and ensure that any arrangements are documented clearly, particularly if they will only apply during the COVID-19 pandemic and if they will be time-limited.
On 20 March the Chancellor announced the temporary lowering of the Minimum Income Floor (MIF) for Universal Credit for those who have COVID-19 or are self-isolating following government advice. Universal Credit and Working Tax Credit will also be increased. Further measures to support self-employed people are expected.
What happens if an employer has required an employee to take time off work for self-isolation?
Employers owe a duty of care to their employees under the Health and Safety at Work Act 1974 and a common law duty to take reasonable care for the health and safety of their workforce.
Employers should instruct all employees who should self-isolate according to government guidance not to attend work. They will need to assess whether there is a contractual right to suspend an employee in these circumstances (which would usually be on full pay). Many contracts only permit suspension where allegations of misconduct need to be investigated. If not, the employer may need to seek to reach an agreement with the employee as to working from home or, if this is not possible, not attending work for a specific period (which would usually need to be treated as paid leave).
This note gives general guidance and an overview but is not intended to be legal advice.
The situation in relation to COVID-19 is developing rapidly: we have sought to ensure that the contents are accurate as at the date of publication but you are advised to check for the latest information.
Public Health England provides public health information and up-to-date information is available here.
Guidance for employers and employees provided by Advisory, Conciliation and Arbitration Service, is also available here.
For any legal advice on specific circumstances please contact your usual Howard Kennedy Employment Team contact.