Covid-19 and Sick Pay Provisions
Now that the vaccine roll-out has significantly increased across the adult population in England, we are receiving a rise in queries from employers regarding sick pay entitlement and what they are required to pay to an employee who has contracted Covid-19.
Contractual Entitlement
The simple and most common answer is that an employee who has contracted Covid-19 is entitled to receive sick pay in line with the terms of their contract. This may be Company Sick Pay or Statutory Sick Pay only. Provided that the employee satisfies the necessary eligibility requirements, including length of absence, notification of absence and earnings threshold, then they are entitled to receive the sick pay as stated in their contract of employment.
Statutory Sick Pay (SSP) Eligibility
To qualify for SSP, an individual must:
- Be classed as an employee;
- Earn an average of at least £120 per week;
- Have been ill or self-isolating for at least 4 days in a row.
It is important to remember that the position on pay for waiting days if an employee is off sick for Covid-19 related reasons has been amended, to encourage employees to isolate properly when needed.
All employees must be absent from work for at least 4 days to become eligible for SSP. If an employee is absent from work for non-Covid-19 related reasons, the first three days are unpaid waiting days.
However, if an employee is absent for Covid-19 related reasons, they are entitled to receive SSP for all days of absence, including the first three waiting days.
SSP is currently paid at the rate of £96.35 a week. SSP is only payable for 28 weeks.
What if employees choose not to be vaccinated and then contract Covid-19?
Employers still need to pay the applicable SSP or Company sick pay.
This is because there is nothing to suggest that vaccinations provide 100% protection against contracting the virus. Double vaccinated individuals can still contract the virus and become ill. Equally, there is no legal requirement currently to be vaccinated.
There are many reasons why an individual may choose not to be vaccinated which can lead to various discrimination issues if an employer refuses to pay for sickness absence on the basis of an employee choosing not to be vaccinated.
What are employees eligible to if they are required to self-isolate?
An employee is entitled to SSP or Company Sick pay (as per their contractual entitlement) if they are self-isolating because:
- They, or someone they live with has symptoms or has tested positive;
- They have come into contact with someone who has tested positive and have been notified to self-isolate by an NHS test and trace service;
- Someone in their support bubble or extended household has symptoms or has tested positive;
- They have been advised by their doctor to do so before going into hospital for surgery.
What if an employee is required to self-isolate after choosing to travel abroad on holiday?
Where an employee is self-isolating after entering or returning to the UK from travel abroad to a country that requires a period of quarantine on arrival in the UK, they are not entitled to SSP unless they are self-isolating for any other reason, such as having symptoms.
If the employee is able to work from home during any period of self-isolation, they should receive their normal pay for work completed.
If the employee cannot do their job from home while self-isolating in these circumstances, employers can consider whether to offer and allow:
- Extra paid annual leave
- Unpaid leave
- Company sick pay
- Special paid leave
As may be appropriate in the circumstances.
What if an employee simply chooses to self-isolate without receiving a test and trace notification?
In order to qualify for SSP an employee must be absent from work due to incapacity. The SSP regulations have been amended to confirm that where an employee is required to self-isolate as a result of being contacted by an NHS test and trace service, this is classed a deemed incapacity, even though the employee at that time has not been diagnosed with Covid-19 or displaying symptoms.
However, the amendments to the regulations only apply to the self-isolation scenarios which are set out above. The amendments do not cover a situation where an employee may simply choose to self-isolate for whatever reason, without satisfying one of the above scenarios.
In these situations, SSP is not payable unless the employee can satisfy the incapacity requirements.
Employers should proceed carefully in these situations however, as depending on the reasons for the employee’s choice to self-isolate without satisfying the above criteria, it may be that there are other factors, such as discrimination and health and safety issues to consider before the employer takes any particular action.
The guidance on self-isolation, NHS test and trace and sick pay provisions is continually changing in light of the moving Covid-19 safety measures that are in place from time to time. Employers are encouraged to seek advice on any particular issues that they are facing, before taking any action.
If You Require Further Information
Please contact:
Amy Hallam
Head of Employment
t: 0114 3496989
e: amy.hallam@brmlaw.co.uk
Ellie Leatherday
Employment Solicitor
t: 01246 564 002
e: ellie.leatherday@brmlaw.co.uk
