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Coronavirus: absences from work and entitlement to pay

06 November 2020

The Coronavirus situation may lead to workplace absences for a variety of reasons. This is our summary of legal rights to pay and suggested best practice for different types of absence.

 

Type of absence

Right to pay

Source

Best practice


Sickness absence for coronavirus infection (suspected or diagnosed)

Entitled to usual sick leave and pay entitlements (including SSP)

3-day waiting period for SSP has been removed for incapacity related to coronavirus from 13 March onwards

 

Government advice is that anyone showing symptoms should self-isolate for 10 days

Contractual terms

S151 Social Security, Contributions and Benefits Act 1992

Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) Regulations 2020

Statutory Sick Pay (General) (Coronavirus Amendment) (No.5) Regulations 2020

It may be necessary to relax requirements for evidence of illness.

Inform employee of possible entitlement to additional payment through Local Authority if in receipt of benefits.

Absence for self-isolation/quarantine under government or medical advice-

Able to work remotely – entitled to usual pay

Unable to work remotely but following main guidance on self-isolation (10 days with symptoms/positive test result, or 14 days if in the same household as someone showing symptoms or testing positive) – entitled to SSP until end of period or confirmation of negative COVID test

Unable to work remotely and following medical advice to ‘shield’ because deemed by public health guidance to be ‘extremely vulnerable’ due to underlying health condition – entitled to SSP until end of period in their shielding notification

Unable to work remotely and self-isolating for 14 days in accordance with notification from NHS test and trace system – entitled to SSP

Unable to work remotely and self-isolating for 14 days after someone in their linked or extended household has developed symptoms or received a positive test result – entitled to SSP

Unable to work remotely and self-isolating on written medical advice for up to 14 days in advance of a hospital procedure – entitled to SSP

3-day waiting period for SSP has been removed for incapacity related to coronavirus from 13 March onwards

Otherwise no right to SSP if not unfit to work - so if unable to work remotely, no entitlement to pay unless contractual right to pay in this situation

Pay in all cases may be advisable (see best practice)

S151 Social Security, Contributions and Benefits Act 1992


Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) Regulations 2020

Statutory Sick Pay (General) (Coronavirus Amendment) (No. 5) Regulations 2020

Statutory Sick Pay (General) (Coronavirus Amendment) (No. 3) Regulations 2020

Statutory Sick Pay (General) (Coronavirus Amendment) (No. 4) Regulations 2020

Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) (No.2) Regulations 2020

Statutory Sick Pay (General) (Coronavirus Amendment) (No.6) Regulations 2020

Check contractual terms and any custom and practice.

Payment of full pay will ensure employees do not ignore advice and come to work, risking spreading the virus.

Ensure employees are treated consistently.

Inform employee of possible entitlement to additional payment through Local Authority if in receipt of benefits.

Absence from work at employer request – whether enforcing government rules or under the employer’s own policies.

Able to work remotely – entitled to usual pay

Unable to work remotely but following main guidance on self-isolation (10 days with symptoms/positive test result,14 days if in the same household (including extended or linked households) as someone showing symptoms or testing positive, 14 days after notification from NHS test and trace system) – entitled to SSP, as not “able” to work even if the employee attempts to come to work

If absence is at employer request in other circumstances, entitled to usual pay unless contractual right not to pay

S151 Social Security, Contributions and Benefits Act 1992


Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) Regulations 2020

Statutory Sick Pay (General) (Coronavirus Amendment) (No. 5) Regulations 2020


Inform employee of possible entitlement to additional payment through Local Authority if in receipt of benefits.

 

Absence from work due to compulsory 14 day self-isolation after returning to the UK from abroad

 

If sick - entitled to usual sick leave and pay entitlements (including SSP)

No right to SSP if not unfit to work

Able to work remotely – entitled to usual pay

If not sick and unable to work remotely, no entitlement to pay -  unless entitled under contract or policy (more likely if work-related travel)

S151 Social Security, Contributions and Benefits Act 1992  

Talk to the employee and discuss the options, including whether it is possible to take extra paid holiday or unpaid leave.

If travel was for work, employee may reasonably expect payment – so consider continuing full pay to avoid grievances.

Ensure employees are treated consistently.

Absence from work due to being trapped abroad

If sick - entitled to usual sick leave and pay entitlements (including SSP)

No right to SSP if not unfit to work

Able to work remotely – entitled to usual pay

If not sick and unable to work remotely, no entitlement to pay -  unless entitled under contract or policy (more likely if work-related travel)

 
S151 Social Security, Contributions and Benefits Act 1992 Talk to the employee and discuss the options, including whether it is possible to take extra paid holiday or unpaid leave.


If travel was for work, employee may reasonably expect payment – so consider continuing full pay to avoid grievances.


Ensure employees are treated consistently.


Absence from work due to being scared of risk of infection – vulnerable employees

Vulnerable employees include those with relevant health conditions or a weakened immune system

Able to work remotely and employer agrees – entitled to usual pay

If not able to work remotely, those ‘shielding’ under official medical advice because public health guidance deems them ‘clinically extremely vulnerable’ are entitled to SSP until end of period specified in their latest shielding notification

Anyone else is not entitled to SSP

Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) Regulations 2020

Statutory Sick Pay (General) (Coronavirus Amendment) (No. 3) Regulations 2020

Talk to employee to try and resolve their concerns and discuss the options - including whether it is possible to take unpaid leave or be placed on furlough.

Absence from work due to being scared of risk of infection – other employees

Able to work remotely and employer agrees – entitled to usual pay

Generally no entitlement to pay if employer requires employee to come to work and they refuse

Potentially entitled to full pay if employee leaves or refuses to return to the workplace due to a reasonable belief of ‘serious and imminent danger’ – employee cannot be subjected to a detriment or dismissed as a result (a section 44 claim)

Entitled to SSP/company sick pay if serious anxiety means employee is too unwell to come to work

S44 Employment Rights Act 1996 Ensure employees are treated consistently - but

consider the position of vulnerable employees (see above)

Temporary workplace closure at employer request Entitled to usual pay

Unless express contractual provisions for unpaid or reduced pay lay-off, or consent of employees to lay-off  – rare in practice

Employees can agree to be placed on furlough under government’s job retention scheme

S147-154 Employment Rights Act 1996


Pay full pay or agree furlough (or make redundancies if furlough is not appropriate or employees do not agree)

Temporary workplace closure ordered by government Not entitled to SSP (unless sick or following main guidance about 7/14 day self-isolation (10 days with symptoms, 14 days if in the same household including extended or linked households as someone showing symptoms or testing positive, 14 days after notification from NHS test and trace system)

Unlikely to have contractual entitlement to sick pay

Able to work remotely – entitled to usual pay

Not able to work remotely - entitled to usual pay unless express contractual provisions for unpaid or reduced pay lay-off, or consent of employees to lay-off  – rare in practice

Employees can agree to be placed on furlough under government’s job retention scheme

Contractual terms

 

Statutory Sick Pay (General) Regulations 1982 (as amended by Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) Regulations 2020)

Pay full pay or agree furlough (or make redundancies if furlough is not appropriate or employees do not agree)
Reduced working hours at employer request Entitled to usual pay

Unless express contractual provisions for short-time working, or consent of employees – rare in practice


 S147-154 Employment Rights Act 1996
Absence for childcare

Emergency dependent leave gives right to reasonable amount of time off work

Covers assisting or arranging care for ill dependants (e.g. child has the virus), and with unexpected breakdown in care arrangements (e.g. child is self-isolating or school is closed)

This is unpaid - unless pay is provided in the employer’s contract or policies


S 57A-57B Employment Rights Act 1996 No limit to the amount of time an employee is entitled to take off. Reasonable will depend on employee’s own circumstances – case by case assessment needed.

Disruption or inconvenience to employer’s business should not be taken into account.

Ensure employees are treated consistently.

       


 




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