Frequently Asked Questions about Sick Pay and Covid-19 related absences
Over the past few weeks, we have been receiving a lot of queries from employers and employees about sick pay – unsurprising given the number of people who are testing positive for Covid-19. It is a confusing area, not helped by the frequency with which Government guidance is updated. To help make sense of the various rules and guidelines, we answer some of the most frequently asked questions about sick pay and Covid-19:
Who is eligible to receive Statutory Sick Pay?
Briefly, for someone who works for you to qualify for Statutory Sick Pay (SSP), they must:
- Be employed – workers and contractors are not eligible for SSP.
- Earn an average of at least £120 a week.
- Have been ill, self-isolating or shielding for at least 4 days in a row.
Employees who qualify can receive SSP of £95.85 per week for up to 28 weeks.
Do we pay SSP to an employee who is self-isolating?
Yes – providing they meet the eligibility criteria above AND they are self-isolating because:
- they or someone in their household has coronavirus symptoms or has tested positive for the virus;
- they have been notified by the NHS Test and Trace service that they have been in contact with someone with coronavirus;
- someone in their support bubble has coronavirus symptoms or has tested positive for coronavirus; or
- they have been advised to isolate before going to hospital for surgery.
SSP is payable from day one where the employee is self-isolating for reasons relating to the coronavirus.
Can we pay SSP to employees who are self-isolating after returning to the UK from abroad?
No. SSP is not payable in these circumstances unless the employee’s situation changes and they have to self-isolate for another reason (e.g. because they test, or someone they live with tests positive for coronavirus).
Employees who are clinically extremely vulnerable or at high risk of severe illness from coronavirus and have a current shielding notification letter are entitled to SSP. They are entitled to SSP for as long as they are advised to shield.
However, the government recently confirmed that employers can furlough employees who are clinically extremely vulnerable. For most employees, this is going to be a much better option than going onto SSP. Therefore, our recommendation is that you should, if possible, furlough any employees who are clinically extremely vulnerable (and who cannot work from home) rather than pay SSP.
Can we pay SSP to employees who are in the “clinically vulnerable” category and cannot work from home?
No. If an employee is not classified as clinically extremely vulnerable, then they are not entitled to SSP if they wish to shield at home. In this situation, it is best to seek legal advice to discuss the options available to you – such as allowing the employee to go on furlough leave (if eligible), annual leave or unpaid leave.
What do we pay employees who are off sick for non-Covid related reasons?
If the employee’s illness is not connected to the coronavirus then the employee is entitled to SSP from the 4th day of absence. It is only if the absence is coronavirus related that SSP is payable from day one. This difference between “waiting days” for non-Covid related and Covid related illnesses can potentially lead to complications if, for example, the employee is off sick with coronavirus symptoms but then receives a negative test result. In that situation, the employee should only be paid SSP from the 4th day of absence.
You can furlough employees who have caring responsibilities resulting from coronavirus such as caring for children who are at home because school and childcare facilities are closed or caring for a vulnerable individual in their household. These employees are not, however, eligible for SSP – unless of course they are required to self-isolate for the reasons above.
Do we have to pay company sick pay if an employee is self-isolating but is not actually sick?
This is a tricky question. It depends on what your company sick pay policy and/or the contract of employment says about the circumstances in which company (contractual) sick pay is payable. If contractual sick pay is expressed as payable only where an employee is absent because they are ill or injured then you could potentially argue that you should not have to pay an employee who is self-isolating but is not ill. However, we recommend you seek advice before deciding not to pay company sick pay where an employee is required to self-isolate not least because of the unintended consequences such a decision may have (i.e. you may end up with employees coming to work even when they are sick because they can’t afford not to get paid).
Can we put an employee who has been told to self-isolate on furlough instead of sick leave?
No. The government guidance specifically says that the Coronavirus Job Retention Scheme is not intended to be used to cover absences due to short term illness or self-isolation. If the employee is eligible for SSP, that is what you must pay them for the duration of their absence.
However, note that the government guidance does allow you to furlough employees who are currently off sick if you are doing so for business reasons. In such cases, the employee will no longer receive sick pay and will instead receive furlough pay. The point is that you cannot furlough employees where the reason for doing this is to cover a period of short term illness or self-isolation.
What do we pay an employee who becomes sick when they are on furlough?
In this situation it is your choice, as the employer, whether to keep the employee on furlough, on their normal furlough rate of pay, or to move them onto SSP.
Can we reclaim SSP for coronavirus related absences?
Yes, under the Coronavirus Statutory Sick Pay Rebate Scheme, if you employ less than 250 employees you can reclaim SSP paid to any employees who have been absent from work because of Covid 19 for the first two weeks of their sickness absence.
What do we pay staff who we have told to self-isolate because a colleague has tested positive?
This is another difficult question because there is actually no requirement for an employer to instruct employees to self-isolate where they have been in contact with a colleague who has tested positive. The only circumstances in which an individual is required to self-isolate are set out above (“Do we pay SSP to an employee who is self-isolating?”) and they do not include being in close contact with an employee at work.
Understandably, many employers may consider it their duty, not only to their staff but the wider community, to send home any employees who may have had close contact with an employee who has tested positive. Certainly, any employees who are classed as clinically vulnerable should be sent home if the workplace poses a risk to them which cannot be avoided if they remain at work. The problem, however, is that unless an employee is self-isolating for one of the prescribed reasons, SSP is not payable.
So, what do you pay to employees who you have sent home to self-isolate when you cannot pay SSP? The answer is not straight forward. If they can work from home, all well and good, but if they cannot, then there is a good argument to say that you should be paying them full pay until the workplace is safe for them to return.
Practically speaking, should such a situation occur in your business, it is unlikely to present too much of a problem or at least only a short term one. Any employees who work closely with an individual who has tested positive, are likely to be contacted in any event by the NHS Test and Trace service and told to self-isolate, leaving any remaining staff to return to work after the necessary steps have been taken to clean the workplace to avoid a potential spread of the infection.