In order to qualify, the employee must be absent from work due to incapacity. This generally requires the employee to be diagnosed with COVID-19 or exhibited symptoms. However, regulation 2, of The Statutory Sick Pay (General) Regulations 1982 (SSP Regs) provides for certain types of absence to be deemed days of incapacity The SSP Regs have had an emergency amendment made to them to take into account COVID-19 and therefore anybody who is self-isolating in order to prevent the infection or spread of COVID-19 in accordance with public health guidance, and who are unable to work as a result, will be deemed to be incapable of work for these purposes and therefore entitled to SSP.
1. Employer suspends for reason not falling within government self-isolation advice
In this scenario it is likely that they will be entitled to full pay. This might therefore be considered in the same way as a medical suspension although you may want the employee to be assessed as to capability. That is difficult at present because of the ability to get to a GP and/or hospital. Therefore, if the employee insists they are ok to work and does not have symptoms that fall within the government guidance then it is likely they will be entitled to full pay for the period of suspension.
2. Employer suspends for reason falling within government self-isolation advice
Remember, the government self-isolation advice is changing all the time but currently includes not just COVID-19 symptoms but also new persistent dry cough or temperature of 38 or above.
In this scenario, it depends on whether employees can work from home or not. If they have the symptoms but are otherwise well and can work from home then it is likely they are entitled to full pay. If they are well but have the symptoms but cannot work from home then it is likely they will be classed as incapable under the amended SSP Regs and will be entitled to SSP. If they are unwell with the symptoms and cannot work, they will be entitled to SSP.
Please note, that where you pay company sick pay, you may be required to pay that in addition to SSP.
3. Where employee refuses to attend work due to fears of COVID-19, what action can you take and what pay are they entitled to?
If the employee cannot work from home then the simple answer may be that this is treated as AWOL and they are entitled to no pay. You may also be able to take disciplinary action or you may simply agree that they can stay at home albeit without pay.
In the above scenario, you may have to consider (1) any disability discrimination issues; or (2) whether you treat vulnerable groups differently.
4. Where an employee is directed by a medical professional to self-isolate?
Assuming they cannot work from home, then they will be deemed incapable under the new incapacity rules for SSP. Note, again, if you pay company sick pay they would qualify for that in addition.
5. What happens if you have to shut a site?
It depends on the reason.
If it is because you have had a person with COVID-19 and you are shutting for a deep clean, then in most instances employees should be paid in full during the closure whether they can work from home or not.
If an employee is ordered by the government to go into mandatory quarantine or detention, then they will not be regarded as able to work (even if they feel fine and able to do so in reality) and would then be entitled to SSP. Obviously, as before if they are entitled to company sick pay in addition they would be entitled to that also.
If the government orders the closure of the site and the employee is otherwise well and can work from home and you have a need for them to work at home, then they would be entitled to full pay during the closure. Remember in such an instance this depends on whether they can work at home and you want them to (assuming you have work for them to do)
If you voluntarily close a site because there is no trade, then the employee would be entitled to full pay during the closure in the absence of any right to lay-off.
The current position is fast moving and questions will develop as time passes. Howes Percival has a number of specialist employment solicitors across our sectors who are able to assist with any queries. Click here to contact a member of the team.
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