COVID-19 - WHAT EMPLOYERS NEED TO KNOW ON SICK PAY AND ABSENCE

INTRODUCTION AND GENERAL PRINCIPALS

In a situation of great uncertainty, employers need to focus on maintaining their employees' trust and confidence by demonstrating effective leadership, following Government guidance and by acting reasonably in what is an unprecedented and evolving crisis.Given the Government announcement from the Prime Minister who outlined strict new measures to tackle the spread of coronavirus, it has become more vital than ever for employers to focus on being consistent.The COVID-19 pandemic is continuously changing and the Government and ACAS advice for employers is being updated as the situation develops. Employers are advised to keep track of the relevant guidance from the following sources:

• Public Health England and BEIS: COVID-19: guidance for employees, employers and businesses (applicable in England).
• Welsh Government: Coronavirus (COVID-19): employers and businesses guidance (applicable in Wales).
• Health Protection Scotland: COVID-19: Information and Guidance for Non-Healthcare Settings (applicable in Scotland).
• Acas: Coronavirus: advice for employers and employees (relevant to employers throughout the UK).

STATUTORY SICK PAY (SSP)

Key points:

• SSP is payable when the employee is absent from work due to incapacity. Where an employee has not, at the point that they began their absence, either been diagnosed with COVID-19 or exhibited symptoms, then it is unlikely that their absence will meet the definition of incapacity.
• A person is deemed incapable of work where they are isolating themselves from other people in such a manner as to prevent infection or contamination with coronavirus. This is in accordance with guidance published by Public Health England, NHS National Services Scotland or Public Health Wales and effective on 16 March 2020 (New Regulation 2(1)(c) Statutory Sick Pay (General)(Coronavirus Amendment) Regulations 2020 (Coronavirus Amendment Regulations).
• The guidance as updated on 16 March 2020 states that if an individual lives with others and they or someone in their household has symptoms of COVID-19, all household members must stay at home and not leave the house for 14 days. No.2 Regulation extends SSP entitlement to those individuals who are unable to go to work or carry out their role from home during the 14 day isolation period.
• The recent guidance from the Government strongly advises everyone to work from home if they are able to and including if they are aged 70 and over, pregnant or have a specific underlying health condition.
• The Government has also advised of a ban on public gatherings of more than two people at one time, as well as everyone working from home if they are able to. Employers should regularly check the public health guidance as it has changed as the pandemic develops, and directly affects who is entitled to SSP during self-isolation.

Changes to SSP

• Employees will receive �94.25 per week SSP if too ill to work, and paid for up to 28 weeks.
• If employees are staying home because of COVID-19, SSP is payable from day 1 of the absence instead of day 4. Once the legislation has been passed, this will apply retrospectively from 13 March 2020.
• The definition of "incapacity" extends to cover those who are self-isolating and social distancing because a member of their household has symptoms, in accordance with the government's guidelines.
• Employers with fewer than 250 employees will be reimbursed for any SSP paid in respect of the first 14 days of sickness if related to COVID-19.

ABSENCE AND PAY

Where an employer sends an employee home from work to self-isolate, what pay are they entitled to?

An employee's right to pay where their employer sends them home from work will depend upon the precise circumstances of that decision. In light of the Government's recent announcement, where an employee is able to continue to work from home, then subject to any contractual provision they will continue to be entitled to their normal rate of pay.

If they are not able to work from home, then consideration would need to be given to the terms of the contract of employment?

We are still waiting on further guidance on the Job Retention Scheme, called 'furlough leave' when to avoid redundancy employees can be paid 80% of salary.

Where an employee refuses to attend work due to fears about COVID-19, what action can the employer take and what pay are they are entitled to?

The Government has advised that people should only leave their homes for travelling to and from work, but only where work cannot be done from home. If the employee can work from home then this may well resolve the issue. However if not, the employer would need to consider the current public health advice, the specific reason that the employee is concerned about attending work and whether it would be discriminatory to refuse home working, take disciplinary action, or withhold pay in light of employee's refusal.If the absence is unauthorised then the employee would likely not be entitled to pay as they are not willing to attend work.

Taking holiday to cover period of absence?

The normal rules on taking annual leave under the WTR 1998 will continue to apply. Employees may wish to take annual leave as an alternative to scenarios where they would otherwise be on SSP or nil pay. Employees are entitled to take statutory annual leave during sickness absence but may not be compelled by the employer to do so.

What pay is an employee entitled to where they have mild respiratory symptoms but no diagnosis of Covid-19?

An employee in these circumstances may be treated as being on sick leave and be paid SSP or contractual sick pay. Although their mild respiratory symptoms may not have ordinarily resulted in them taking sickness absence, the fact that they have symptoms likely this will bring them within either the normal definition of "incapacity", or the deemed incapacity provisions (if they fall within Government guidance to self-isolate).

MANDATORY ISOLATION

Where an employee is ordered to self-isolate or is quarantined under the Health Protection (Coronavirus) Regulations 2020, what pay are they entitled to?

The recent new guidance from the Government states that you must stay at home, apart for one of four reasons:

1. Shopping for basic necessities such as food and medicine;
2. One form of exercise a day, which should be done alone or only with people you live with;
3. Any medical need, or to provide care or to help a vulnerable person;
4. Travelling to and from work but only where work absolutely cannot be done from home.

Where an employee is subject to mandatory quarantine or detention underpinned by a legal obligation to stay away from the workplace then it is likely that they would not be regarded as "able" to work, and so the implied right to wages would not be engaged. This assumes that they were unable to continue working remotely from the quarantine location.However, it is likely that an employee who is forced to abstain from work because of compulsory detention or other restrictions made under an enactment such as the Coronavirus Regulations would be entitled to SSP under the deemed incapacity provisions in regulation 2(1)(b)(ii) of the SSP.We expect to receive more information from the Government on mandatory isolation

JOB RETENTION SCHEME (FURLOUGHED WORKERS)

We are waiting on further guidance on the Job Retention Scheme further to the announcement on 20 March 2020 by the Chancellor.However, as an employer, if you cannot cover staff costs due to COVID-19, you may be able to access support to continue paying part of your employees' wages, to avoid redundancies. This means that the employer will keep the employee on the payroll, rather than laying them off.The Scheme would apply only to employees who are no longer working. The employer will be able to claim a grant of up to 80% of the employees' wages, up to a cap of �2,500 per month (backdated to 1 March 2020). The employees will remain employed whilst furloughed, and the employer could choose to fund the difference between this payment and the employee's salary; but they are not under a duty to.The Government intends for the Coronavirus Job Retention Scheme to run for at least 3 months from 1 March 2020. This Scheme may be extended if necessary.If you have any questions about this, or any other workplace issue, please contact one of our specialist employment lawyers at employment@healys.com, and we will help you.