November 19, 2020
Statutory sick pay (SSP) entitles qualifying workers to receive a weekly payment of £95.85 (the sum is reviewed each April) for up to 28 weeks in any one spell of absence, if they are absent from work due to incapacity. To qualify for SSP, a worker must have been ill, self-isolating or shielding for at least 4 days in a row (including non-working days) and earn an average of at least £120 per week. However, SSP is not payable to those employees who are self-isolating after entering or returning to the UK and do not need to self-isolate for any other reason.
Workers who were advised to shield will have received a letter from the NHS, their GP or public health authorities. Some letters included a fixed period of time for shielding, after which time the worker could be deemed available for work if they feel fit and well, and therefore not entitled to SSP. Where shielding letters did not specify a fixed timeframe for shielding, typically where the worker is considered to be in the clinically extremely vulnerable category, they can remain on SSP until they are notified that the requirement to shield has ended. However, if the worker is fit and able to work from home whilst shielding, they can continue to work and be paid for doing so, rather than being placed on SSP.
If a furloughed worker falls ill, there is no obligation on employers to end the period of furlough and move the worker onto SSP, and arguably, there is little incentive for employers to do that whilst they can reclaim 80% of an employee’s pay under the furlough scheme. Furthermore, HMRC guidance states that it is at the employer’s discretion whether or not to furlough workers who are on long-term sick leave.
Workers who cannot work because of Covid-19 are entitled to SSP from the first day of incapacity if they are self-isolating because:
they or someone they live with has Covid-19 symptoms or has tested positive for the virus, or someone within their ‘social bubble’ has tested positive for the virus;
they have been notified by the NHS or public health authority that they have been in contact with someone with Covid-19; or
they have been advised to do so by a healthcare professional for 14 days prior to undergoing a medical procedure.
However, if a worker’s illness is not related to Covid-19, the normal SSP payment rules apply whereby they are entitled to SSP from the fourth day of sickness absence.
Employers can still require workers to provide evidence of their incapacity or requirement to self-isolate.
If a worker is advised to self-isolate for any of the reasons set out in the bullet points above, but is well and able to work from home, they should do so and continue to receive their normal remuneration.
Employers with fewer than 250 workers may be entitled to reclaim the SSP paid to an employee of up to 2 weeks of Covid-19 sickness absence (SSP is not usually recoverable from HMRC). For more information, visit: https://www.gov.uk/guidance/claim-back-statutory-sick-pay-paid-to-your-employees-due-to-coronavirus-covid-19
Workers may also be eligible for company sick pay (in addition to SSP) if their employer has a contractual sick pay scheme. Employers should therefore check their Sick Pay policy and/or individual contractual entitlements to review the rate of company sick pay payable, when it is exhausted, and any other relevant rules.
There may be occasions where an employer needs to suspend a worker on health and safety grounds, where the worker does not fall into any of the categories cited above for which they would be entitled to receive SSP. For example, a worker may have been in contact with someone who has tested positive but is not displaying symptoms and has not been required to self-isolate under the Test & Trace scheme, but nonetheless the employer (as opposed to the Government) considers them to pose a risk to the health and safety of those they work with and they can’t work from home. It is likely that in such circumstances, the worker should receive full pay whilst on suspension because they are willing and able to work but are being asked not to.
Review your Sickness Absence policy and update it, if necessary, to reflect the current rules in relation to COVID-19, or advise employees that you will keep abreast of and abide by SSP rules.
Ensure that you keep a written record of all workers’ sickness absences, the dates that qualify for SSP purposes, and the reason for each spell of absence. Make sure to keep a record of SSP paid to each worker if you want to reclaim it from HMRC.
Ensure that you get relevant evidence of the worker’s incapacity to work. This can include an NHS isolation note, a text or email notification from the NHS or public health authorities to self-isolate, a GP’s fit note or a letter from the NHS or a GP telling the worker to shield.
When a worker is ready to return to work after sickness absence, you should hold a return to work meeting with them to make sure that they are fit to work and see whether any (additional) support or reasonable adjustments are needed to support their return to work. This can be conducted virtually where the employee is working from home.
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