Coronavirus and Absence Due To Sickness

In this article: Coronavirus and Absence Due To Sickness I discuss Self Isolation, Notification of Absence, Self Certification and Medical Certificates and changes to Statutory Sick Pay including SSP Waiting Days and Reimbursement of SSP.

Other Types Of Time Off Work
My Coronavirus and Time Off Work I discuss the many circumstances your employees may have for not attending work during the Coronavirus pandemic such as: school closures, caring for a sick dependant, disabled and vulnerable workers and those too nervous to leave home. I also discuss how you can enforce a period of holiday and what you can do if a client closes their business premises.
Furloughed employees retain their statutory rights, including their right to SSP. This means that furloughed employees who become ill must be paid at least SSP. It is up to employers to decide whether to move these employees onto SSP or to keep them on furlough, at their furloughed rate. If they are moved onto SSP, employers can no longer claim for the furloughed salary. However, if employers keep the sick employee on the furloughed rate, they remain eligible under the Scheme.

If an employee’s sick pay is less than the payments under the Scheme, they are unlikely to report their sickness as they will not be working anyway.

Updated guidance is released regularly and I will update this page as more details are announced.

This page was firstly published on 6 April 2020 and the last update was 23 June 2020.

Test and Trace System

The NHS ‘Test and Trace‘ system went live in England on Thursday 28 May 2020. Other parts of Great Britain have similar, but not identical, Test and Trace systems.

The NHS test and trace service will follow up with people who need to self-isolate because they have had close recent contact with someone, who might be a colleague, who has tested positive for coronavirus. It will do this through:

  • dedicated contact tracing staff
  • local public health experts
  • online services
  • the new NHS COVID-19 app, which will be rolled out nationally after the trial period in the Isle of Wight

Initial Symptoms
When someone first develops symptoms and orders a test, they will be encouraged to alert the people that they have had close contact with in the 48 hours before symptom onset. If any of those close contacts are co-workers, the person who has developed symptoms may wish to (but is not obliged to) ask their employer to alert their co-workers. At this stage, those close contacts should not self-isolate, but they:

  • must avoid individuals who are at high-risk of contracting COVID-19, for example, because they have pre-existing medical conditions, such as respiratory issues
  • must take extra care in practising social distancing and good hygiene and in watching out for symptoms
  • will be better prepared if the person who has symptoms has a positive test result and if they (the contact) receive a notification from the NHS test and trace service explaining they need to self-isolate

Testing Positive
If the person who has symptoms has a positive test result for COVID-19, the NHS test and trace service will ask them to share information about their close recent contacts.

If they work in – or have recently visited or attended – one of the following settings, the contact tracing process will be escalated to local public health experts, who will liaise as necessary with the manager of the relevant setting:

  • a health or care setting, for instance a hospital or care home
  • a prison or other secure establishment
  • a school for children with special needs
  • any setting where there is a risk of a local outbreak

In other cases, any non-household contacts who need to self-isolate will be contacted by the NHS test and trace service. They will receive a formal notification (either a phone call, letter, email or text message) setting out how long they need to self-isolate for.

Workers can use this notification to inform their employer that they have been told to self-isolate. Employers will need this evidence if they are going to claim a rebate for Statutory Sick Pay.

The period of self-isolation will be for 14 days from the point of most recent contact with the person who has tested positive for coronavirus.

Entitlement to SSP

On the 28 May 2020 the Statutory Sick Pay Regulations were amended. It added to the list of people deemed incapable of work for statutory sick pay purposes to include those who have been notified they need to isolate due to coming into contact with somebody with Coronavirus.

Following the Coronavirus outbreak, the SSP Regulations were initially amended so that people who were isolating because either they or a member of their household had symptoms of Coronavirus or they were shielding due to being extremely clinically vulnerable were deemed to be ‘incapable of work’ and therefore entitled to SSP.

In England, this further amendment adds a new category of people, it means if a person has been notified through the new Contact Tracing system (also referred to as Trace and Trace) that they have been in contact with somebody who has Coronavirus symptoms and they must self-isolate for 14 days, they are also deemed ‘incapable of work’ and will be entitled to SSP.

SSP is currently paid at a flat rate of £95.85 for up to 28 weeks in any period of incapacity for work. Eligible employers, namely those with fewer than 250 employees, can also recover up to 2 weeks’ SSP paid to its employees from HMRC.

Coronavirus Contact Tracing App
The contact-tracing app is designed to let people know if they have been in close contact with someone who later reports positive for Coronavirus. It could pinpoint exactly who needs to self isolate and who doesn’t, making it key to easing up social distancing measures. The purpose of the contact-tracing app is to try and track down people and alert them of the need to self-isolate faster than traditional methods. Users who download the app to their phone can voluntarily opt-in to record details of their symptoms when they start to feel unwell. The app keeps a trace of others who have been in close contact through Bluetooth signals that transmit an anonymous ID. These low energy Bluetooth signals perform a digital “handshake” when two users come into close contact, but keep that data anonymous.

If an individual later reports that they are positive for coronavirus, the app will then ping a message to people who have been in close-contact with them in the last 28 days based on their anonymous IDs. The app will recommend those people self-isolate in case they have contracted the disease. Those contacted won’t know the identity of the person who may have passed on coronavirus.

Individuals who receive an alert that they have been in contact with someone who has tested positive will then need to self isolate for 14 days. If they take a test and the tests negative, they may be released from their self-isolation by a notification through the app. For trials on the Isle of Wight, people who voluntarily report their symptoms will be brought a testing kit within 24 hours, the government has said.

The app is currently being trialed on the Isle of Wight, as soon as that trial ends and the app is rolled out to the rest of the country my recommendation is to encourage all your employees who are working to download and activate the app.

Self Isolation

What is ‘Self Isolation’?
The term ‘Self Isolation’ refers to staying at home and limiting contact with others to help control the spread of the virus. Anyone who suspects they have the Coronavirus and those who live with them should follow this advice. It’s also recommended for people who are classed as ‘at risk’.

For those in the ‘at risk’ category Self Isolation is only a recommendation at the moment. The NHS advises we should avoid travel unless absolutely necessary and cancel or reschedule any appointment which isn’t essential, including all social engagements.

As per NHS guidelines, we should self isolate to help avoid the risk of spreading the infection:

  • If a person is experiencing symptoms they should stay at home for at least 7 days
  • If anyone a person lives with is experiencing symptoms, everyone in the house should stay at home for 14 days from the day the first person showed symptoms
  • Anyone who is self isolating should not leave the house and should look at how online services can help.

How Long Should An Employee Self-isolate For?
If someone has symptoms and lives alone, they must self-isolate for 7 days.

If someone lives in a household and is the first to have symptoms, they must self-isolate for 7 days. Everyone else in their household must self-isolate for 14 days.

If anyone else in the household starts displaying symptoms, the person with the new symptoms must self-isolate for 7 days. This is regardless of where they are in the 14-day isolation period.

Notification of Self Isolation
If an employee or worker cannot work, they should tell you:

  • as soon as possible that they are unfit for work;
  • the reason they are unfit for work; and
  • how long they’re likely to be absent.

Self Certification and Medical Certificates
Individuals should self certify in the usual way for the first week of any period of absence related to Coronavirus. A new isolation form is available from NHS 111.

Individuals who are off more than one week will need a medical certificate to keep claiming Statutory Sick Pay. They should phone their GP surgery to find out how to get one. Usually it is necessary to be seen by a GP but that won’t be possible as those with Coronavirus are been advised to refrain from visiting GP surgeries and hospitals. You should therefore use your discretion around the need for medical evidence for a period of absence, where an employee is advised to stay at home either because they are unwell themselves, or live with someone who is. This is in accordance with the public health advice issued by the Government.

There may be some temporary change of rules, with the swine flu a few years ago there were ongoing discussions about temporarily extending the self-certification period from one week to two weeks.

Can Employees Who Are Self Isolating Be Furloughed?

The HMRC Guidance provides that:

Short term illness/self-isolation should not be a consideration in deciding whether to furlough an employee. If, however, employers want to furlough employees for business reasons and they are currently off sick, they are eligible to do so, as with other employees.

The HMRC Guidance is therefore clear that the Scheme is not intended for short term absences from work due to sickness, including Coronavirus or self-isolation due to potential exposure to Coronavirus. These individuals should be placed on sick leave, during which time (as a minimum) they will be entitled to receive SSP.

However, the HMRC Guidance also states that the ability to furlough for business reasons applies to employees on short and long term sick leave and those who are self-isolating. In these cases, based on such business reasons, the employer appears to retain a discretion to furlough. Importantly, the employee should no longer receive sick pay and would be classified as a furloughed employee, but note the comments below regarding where sick pay is more beneficial than furlough pay.

The Treasury Direction contradicts this, reiterating that the employer cannot claim under the Scheme in respect of any employee while they remain on SSP and the period of time on SSP does not count towards the 21 day minimum furlough period. However, the employer can end the SSP period by agreeing with the employee that they will move to furlough leave. Additional support for this view is offered in the employee version of the HMRC Guidance, which refers to SSP as amended to capture shielding employees being a safety net where the employer chooses not to furlough them.

If you move an employee to SSP you forfeit the ability to claim under the Job Retention Scheme, although you could claim an SSP rebate for 14 days’ worth of SSP if you are eligible, alternatively you could continue with the period of furlough. The choice is the yours and not the employee’s.

If a currently furloughed employee become sick, the HMRC Guidance states that they retain their statutory rights (in this context, to SSP) but it is for the employer to decide whether to place them on SSP or keep them on furlough pay. The HMRC Guidance does not expressly refer to the employee’s contractual rights being retained (in addition to their statutory rights) but we believe this is implicit and must be the case unless the contract is varied.

Employers can claim furlough pay under the Scheme and the SSP rebate scheme in respect of the same employee but not in respect of the same period of time. For example, if a furloughed employee becomes sick and is moved onto SSP, an employer can no longer claim for the furloughed pay. This mutual exclusivity of the two reimbursement schemes is important: whilst in many cases the furlough pay will be at least equal to (if not higher) than the applicable sick pay, this will not be the case for those employers with generous full pay sick pay terms. Employers will therefore wish to avoid employees seeking to switch from furlough leave to sick pay if the employee could then receive pay that cannot be claimed back under the Scheme.

Furthermore, where the sick pay terms are a matter of discretionary policy, it is now clear that the employer’s discretion can be exercised (so as to minimise claims for breach of the implied term of trust and confidence) to apply the terms of the sick pay scheme so that the sick pay will be SSP or no greater than the prior furlough pay (and ideally, from an employer’s perspective, whichever is the lower).

Where sick pay terms are contractual, of course, a variation will need to be agreed with the union/employee, as applicable, for example to state that, during furlough leave, sick pay will not apply. This is best done at the same time as seeking agreement to furlough leave. Employers who have already placed employees on furlough leave will find it more difficult to agree those changes with union or the furloughed employees and may therefore need to rely on the argument that the furlough leave itself overrides any contractual entitlement to sick pay. Notwithstanding the strict contractual position, employers may in practice be keen to deter employees from seeking to move from furlough to more favourable enhanced sick pay.

Shielding

Shielding is for people, including children, who are at very high risk of severe illness from coronavirus (COVID-19). The employee will have received notification from their GP advising they shield for 12 weeks.

The HMRC Guidance issued on 16 April states that “employees who are unable to work because they are shielding in line with public health guidance can be furloughed.” Effectively this means that such employees can be furloughed if they are unable to work from home.

For employees who are shielding and had already been put on furlough before 16 April 2020, their furlough can continue (even though they are now potentially entitled to SSP).

Employees who are shielding but had not yet been put on furlough on 16 April are now entitled to SSP, so the Treasury Direction’s ban on starting furlough until entitlement to SSP has ended appears to apply to them.

Those who are shielding and can work from home should be allowed to do so.

Living With Someone Who Is Shielding
Parents of a child i.e. someone under the age of 18, who is shielding will be eligible to be furloughed as they have caring responsbilities for the child.

Where an individual who is 18 or over is shielding, the rest of the household do not need to start shielding themselves, but they should do what they can to support the person who is shielding and to carefully follow guidance on staying alert and safe (social distancing).

Update 23 June 2020
From 1 August 2020 shielding will be paused so those who have been shielding can follow the same rules as everybody else, even returning to work if their workplace is safe.

Food packages and Statutory Sick Pay will end at the end of July 2020.

If you have employees who have been shielding and are unable to work from home my recommendation would be to get in touch with them now to ask them how they feel about returning to work and what additional measures you might need to consider to enable them to feel confident to return to work. You may need to ask permission to contact their GP for advice on what measures would be appropriate.

Statutory Sick Pay

The Department for Work and Pensions have confirmed that Statutory Sick Pay (SSP) will be paid to all qualifying employees from day one for Covid-19 / Coronavirus related sickness, including self-isolating.

This took effect from 13 March 2020 and the measure will last for at least eight months. The emergency legislation (2020 no 287) was passed via a statutory instrument to amend the Statutory Sick Pay (General) Regulations 1982. This confirms that a person who is self-isolating to prevent infection or contamination with the coronavirus disease, is deemed unable to work.​

Self-isolation and Sick Pay
Regulation 2 of the Statutory Sick Pay (General) Regulations 1982 provides that a person who is NOT incapable of work but reasonably suspect they are infected or contaminated by, or have been in contact with a case of, a relevant infection or contamination would be eligible to receive statutory sick pay.

Employees and workers must receive any Statutory Sick Pay (SSP) due to them if they need to self-isolate because:

  • they have coronavirus
  • they have coronavirus symptoms, for example a high temperature or new continuous cough
  • someone in their household has coronavirus symptoms
  • they’ve been told to self-isolate by a doctor or NHS 111

Entitlement to statutory sickpay has been extended to people who have been told to isolate under the new Test and Trace system.

Accordingly a person who has been notified that they have had contact with a person with coronavirus, and who is self-isolating for 14 days as a result, will be entitled to statutory sick pay.

In order to claim the SSP rebate you will need to retain evidence that the employee was advised to self isolate by the test and trace system

SSP Waiting Days
With effect from 13 March 2020 the 3 day waiting period for Statutory Sick Pay was temporarily removed for any Coronavirus related absence, which means employees are eligible for sick pay from day one of sickness.

Reimbursement of SSP
The Chancellor of the Exchequer, Rishi Sunak, has announced that the government will reimburse small employers (fewer than 250 employees) any statutory sick pay they pay to current or former employees for the first 14 days of any period of sickness starting on or after 13 March 2020. This is, presumably, a temporary measure to help insulate businesses against the impact of coronavirus. Statutory sick pay is currently paid at £94.25 per week.

If you pay more than the current rate of SSP you can only claim the current rate amount.

The repayment will cover up to 2 weeks starting from the first day of sickness, if an employee is unable to work because they either:

  • have coronavirus
  • cannot work because they are self-isolating at home
  • are shielding in line with public health guidance
  • Employees do not have to give you a doctor’s fit note for you to make a claim.

The mechanism for reclaiming Statutory Sick Pay has not been determined yet but the Government will be working on setting this up as soon as possible. HMRC will announce when the service is available and this guidance will be updated accordingly.

Evidence of Sickness
No supporting documentation is required to support a period of absence due to Coronavirus sickness or self-isolation, although a new isolation form is available from NHS 111.

By law, medical evidence is not required for the first seven days of sickness.

After seven days, employers should use their discretion around the need for medical evidence for a period of absence, where an employee is advised to stay at home either because they are unwell themselves, or live with someone who is. This is in accordance with the public health advice issued by the Government.

Who Can Use The Scheme?
You can use the scheme if:

  • you’re claiming for an employee who’s eligible for sick pay due to coronavirus
  • you’ve had a PAYE payroll scheme that was created and started on or before 28 February 2020
  • you’ve had fewer than 250 employees on 28 February 2020

Connected companies and charities can also use the scheme if their total combined number of PAYE employees are fewer than 250 on or before 28 February 2020.

The scheme covers all types of employment contracts, including:

  • full-time employees
  • part-time employees
  • employees on agency contracts
  • employees on flexible or zero-hour contracts

The measures are intended to last for at least 8 months. I will update this page when an end date is announced.

Records You Must Keep
You must keep records of all the statutory sick payments that you want to claim from HMRC, including:

  • the reason why an employee could not work
  • details of each period when an employee could not work, including start and end dates
  • details of the SSP qualifying days when an employee could not work
  • National Insurance numbers of all employees who you have paid SSP to

You’ll have to keep these records for at least 3 years following your claim.

TOP TIP

Keep records of all absences and sickness payments in preparation for the repayment mechanism being put in place.

Utilising Annual Holiday Entitlement

Employees may wish to take annual holiday entitlement as an alternative to scenarios where they would otherwise be on SSP or nil pay. Employees are entitled to take statutory annual holiday entitlement during sickness absence but may not be compelled by the employer to do so.

Read more information about Holiday Entitlement and Furloughed Employees here Coronavirus and Annual Holiday Entitlement

What’s Next?

The government’s guidance is constantly being updated and I will review the content of these pages as more information becomes available.

If you have any questions please call me on 0114 360 0626 or simply email me at enquiries@kea-hr.co.uk.

Up-to-date information for individuals and employers on the spread of the coronavirus can be obtained from www.hpa.org.uk

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Coronavirus and Absence Due To Sickness