Coronavirus: absences from work and entitlement to pay

Reason for absence

Right to pay (England)

Source

Best practice

Off sick with Covid-19 symptoms

Entitled to contractual sick leave and pay as usual, because employee is unwell.

Entitled to SSP from day 1 as long as total period of incapacity is 4 days or more (the usual 3-day waiting period for SSP has been removed for incapacity related to Covid-19).

If sickness turns out not to be related to Covid-19 (because the employee tests negative) then employee can return to work once feeling better (and would not be entitled to SSP if total period of incapacity is less than 4 days).

If employee receives a positive Covid-19 test result then the employee will be legally required to self-isolate even if they feel better, triggering a new basis of entitlement to SSP (see below).

Contractual terms

Statutory Sick Pay (General) Regulations 1982 (as amended)

Relax requirements for evidence of illness.

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

Tests positive for Covid-19

Able to work remotely – entitled to usual pay.

Unable to work remotely – entitled to SSP for duration of relevant isolation period as long as the total period of incapacity is 4 days or more (SSP would start on day 1 as the usual 3-day waiting period for SSP has been removed in these circumstances until 24 March).If employee subsequently develops symptoms or tests positive , this will trigger a new basis of entitlement to SSP (see above).

Payment of full pay will ensure employees do not ignore advice and come to work.

Ensure employees are treated consistently.

Shielding because deemed to be clinically extremely vulnerable

Note that shielding in England paused on 1 April 2021 and officially closed on 31 September 2021.

Able to work remotely – entitled to usual pay.

Entitled to SSP if unable to work from home and officially asked to shield in a shielding notification letter, for the period specified in the letter.

Not entitled to SSP once shielding notification has ended.

Statutory Sick Pay (General) Regulations 1982 (as amended)

If employee unwilling to return to work, unpaid leave.

Not allowed to come to work by employer - whether enforcing government rules on self-isolation or under the employer’s own policies.

Able to work remotely – entitled to usual pay.

If absent at employer’s request, entitled to usual pay unless contractual right not to pay or to lay the employee off without pay.

Health Protection (Coronavirus Restrictions) (Self-isolation) (England) Regulations 2020

Self-isolating after returning to the UK from abroad or trapped abroad

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).

Discuss options with employee 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.

Unwilling to come to work because of Covid-19 risks

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

Unless under a shielding notification letter (which are not in effect at the moment), there is generally no entitlement to pay if employer requires employee to come to work and they refuse. Potential exception if employee leaves or refuses to return to the workplace due to a reasonable belief of ‘serious and imminent danger’ or if serious anxiety means employee is to unwell to come to work.

S44 Employment Rights Act 1996

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

Ensure employees are treated consistently.

Need to look after children or other dependants

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

Ensure employees are treated consistently.