The disruption to business caused by the COVID-19 outbreak is unprecedented.
In this article, we consider various scenarios in which an employee may be absent from work and what are their rights during those periods, with practical guidance for employers managing absences due to the coronavirus crisis.
Sickness absence due to coronavirus
If an employee is absent from work because they have been diagnosed with coronavirus or they suspect that they have coronavirus, then they will be entitled to statutory sick pay (SSP) as a minimum.
It could be that under the terms of their employment contract, they are entitled to occupational sick pay, i.e. a level of sick pay that is above the statutory minimum. In this case, you should simply follow the requirements of your own occupational sick pay scheme.
You may have to modify the evidence requirements of the scheme, as doctors’ surgeries will not see patients who have symptoms of coronavirus. Therefore, an employee cannot obtain certification from the doctor that they are ill. They can, however, obtain an isolation notice from NHS 111 after sevem days of absence.
Employers can furlough ‘shielding’ employees, and they do not have to be placed on sick pay.
Statutory sick pay rebate scheme
Important changes to SSP scheme came into effect on 13 March 2020.
Under the Coronavirus Statutory Sick Pay Rebate Scheme, employers will be reimbursed SSP that they have paid to current or former employees for periods of sickness starting on or after 13 March 2020.
If you’re an employer who pays more than the current rate of SSP, you can only claim the current rate amount. The current rate of SSP is £94.25 per week.
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 or cannot work because they are self-isolating at home.
Employees do not have to give you a doctor’s fit note for you to make a claim.
The scheme can be used by employers if they are claiming for an employee who’s eligible for sick pay due to coronavirus, they had a PAYE payroll scheme in place on or before 28 February 2020, and 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 and employees on flexible or zero-hour contracts.
Employers 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, the National Insurance numbers of all employees who you have paid SSP. You will have to keep these records for at least three years following your claim.
Statutory sick pay from the first day of sickness
Under the usual system of SSP, an employee would have to be absent for four consecutive days (including weekends and bank holidays) to receive sick pay from the fourth day of absence.
This 3-day waiting period has been removed for incapacity relating to coronavirus. This is for public health reasons, in that people who have the symptoms should stay at home and not be discouraged from doing so by the prospect of receiving no pay for three days.
Sick while furloughed
Employees on sick leave or self-isolating should get SSP, and should only be furloughed once they are no longer receiving SSP. Employers cannot claim for employees under the JRS while they are getting SSP. Employees can be furloughed and claimed for once they are no longer receiving SSP.
The latest JRS guidance provides that employers are free to switch employees from sick pay to furlough and vice versa. However, furloughing should not be misued to ‘top up’ small amounts of SSP for short term absences.
Employers are advised to consider requests carefully to ensure they are genuine where they have reason to believe employees on sick leave may seek to claim they are now fit for work in order to be eligible for a potentially higher payment under the JRS.
Absence due to self-isolation
Current government guidance requires that anyone who can work from home should do so. Employees that can work remotely should be paid as usual. You should check if there are any specific policies relating to home working and ensure that employees working from home are aware of what is expected of them.
If the employee cannot work remotely but is self-isolating because they are following government guidance to self-isolate (for either 7 or 14 days depending on their situation), then they are entitled to SSP. This is SSP as amended, i.e. without the need to wait for three days before paying it to the employee.
Employers may consider paying full pay in this situation, not least due to any risk of allegations of treating employees differently and indirect discrimination.
If the absence from work is at the employer’s request for any other reason, including because they consider that it is not safe for their employees to be in work, then the employer must continue to pay its employees their full pay. The exception to this would be if there was a provision in employees’ contracts stating that the employer does not need to pay the employee their full pay in this situation. It would be highly unusual to see such a provision.
Workers stranded overseas
If your employee is absent from work due to being trapped abroad, their entitlements depend on their exact situation.
If the employee is well and can work remotely, then they should be paid as normal. If the employee is ill while abroad, then they are entitled to sick pay.
If they are not able to work remotely, then you do not have to pay them. However, if they were on holiday when they became trapped, then you ask them if they wish to use up more of their holiday entitlement (if they have some left to use) or if they wish to take unpaid leave instead.
If the employee was travelling for business purposes and became trapped, then you could consider continuing to pay the employee on full pay, regardless of whether they are able to work remotely to avoid any potential grievance or complaint of being unsupported or ‘abandoned’.
Vulnerable employees absent from work due to the fear of infection risk
Employers should allow vulnerable employees to stay at home. these include those that are pregnant, older or have a pre-existing medical condition.
Technically, if they have chosen to stay away from work, thereby withdrawing their service, you do not have to pay them.
However, this does not sit well with an employer’s moral obligation to that employee and society as a whole. Therefore, if the employee agrees, and it is possible to do so, the employee should be allowed to work from home.
If this is not possible, then you can ask the employee to be furloughed for the next twelve weeks – an option which they would be well-advised to accept. Under this scheme, they will not be able to do any work for you and will receive 80% of their pay. HMRC will pay you for your furloughed employees, and you will pay your employee via your payroll in the normal way.
As an alternative to furlough leave, you could offer the employee paid holiday, if they have any to take.
Absence from work due to being scared of the risk of infection – other employees
If the employee explains their concerns and asks to work from home, and you can accommodate this, then you should do so. This means that you will retain the services of your employee and so must continue to pay them.
If you cannot accommodate the employee’s request to work at home, or the nature of the job simply does not allow it, then you can tell your employee that you expect them to attend work. If they refuse, then you do not need to pay them.
It is suggested that you consider very carefully whether it would be prudent or morally acceptable to take disciplinary action against an employee in this situation.
Temporary workplace closure at employer request
If you decide to close the workplace on a temporary basis, then you will have to continue to pay your employees as normal.
The only exception to this is if your employees’ contracts of employment contain express provisions allowing you to lay-off employees, either on reduced pay or no pay at all. It is also possible to ask the employees if they will agree to a period of unpaid lay-off, but it is unlikely that they will agree.
Temporary workplace closure ordered by Government
This is the situation in which most employers currently find themselves.
It is unlikely that employees in this situation will be entitled to either of SSP or contractual sick pay unless they were already or are sick or self-isolating in accordance with the government guidelines.
If your employee can continue to work remotely from home then they should receive their full pay as normal. If your employee is unable to work from home then the employee is still entitled to their usual pay, unless the employee’s contract of employment contains specific provision allowing for periods of unpaid lay-off. A better alternative is to ask the employee to go on furlough through the government scheme.
If the employee will not agree to be furloughed, or it is not appropriate for them, then you have the right to place that employee in a redundancy situation, providing that the legal requirements for redundancy are met.
Reduced working hours at employer request
You may find that you need to ask your employees to work fewer hours, because there is less work available. If this is the case then you will still have to pay your employee full pay.
If your employees’ contracts contain an express provision allowing short-time working to be imposed, along with a concurrent cut in pay, then you can do so. However, most contracts do not contain such a provision and employees are unlikely to agree to a pay cut in such a situation.
It would be better to offer to furlough some employees on 80% of their pay and use the remaining employees to cover the workload. Even this may be difficult to implement in practice if retained employees are asked to cover areas with which they are unfamiliar or require additional training.
Absence for childcare & caring for sick dependants
Nurseries and schools are now closed to all children except those of key workers. Therefore your employees may find that they have to take time off, either from work, or from working remotely at home, to look after their children.
On 4 April, the Government confirmed that the Job Retention Scheme was being extended to cover workers with caring responsibilities such as childcare and/or relatives sick due to coronavirus.
Outside of this special measure, employees would ordinarily rely on dependancy leave. In the very short-term, parents and carers are entitled to a reasonable amount of time off to deal with a family emergency, for example a disruption to childcare arrangements. This is either paid or unpaid depending on the policy of your organisation. However, a ‘reasonable amount of time off’ usually means 2-3 days, whereas the disruption in this case is going to be more than 2-3 months.
You can help parents and carers manage this by adopting the following approaches. You should remember that each employee’s situation will be different so approaching your staff as individuals will really help to find a sustainable solution for you both.
- Be flexible on hours of work – your employee may be able to work in the morning, then be on childcare duty in the afternoon, then be able to work again in the evening, or they may be able to start much earlier and finish earlier
- Ask them if they would like to take a period of paid or unpaid leave
- Offer to put the employee on furlough – this can be done on three-week rotation
- Offer a period of short-term leave to prepare and make adjustments so that they can then return to work, either in person or remotely
- Ask the employee if they would like to use some of their holiday entitlement
The guidance in this area continues to develop as in response to the rapidly changing situation. Employers are advised to keep the government guidance under review and take professional advice about any workforce concerns.
If you are concerned about the employment risks relating to the coronavirus and mitigating its impact on your workforce and business, we can help. Our team of employment specialists can support with advice on specific issues and developing a strategy to manage the ongoing workforce risks and aftermath of the Covid-19 crisis. Speak to our experts today.
COVID-19 Holiday Entitlement FAQs
Are furloughed employees entitled to sick pay?
Furloughed employees are still entitled to Statutory Sick Pay, and, potentially, under their con-tracts of employment to occupational sick pay.
Should furloughed employees be paid sick pay if ill?
Yes, furloughed employees should be paid sick pay and then put on furlough once recovered.
Do employees have to get a sick note if they have coronavirus?
Under new regulations, employees who have coronavirus, or think they do, can self-certificate for seven days. After that, it is up to the employer to decide whether they need to see any kind of certificate at all and if so whether or not it needs to be from a GP or other doctor. Employ-ees who have been self-isolating for more than seven days are able to apply for an 'isolation note' via the NHS 111 website.