Absence from work and pay

Updated as of 21 April 2020 

The Coronavirus pandemic has led to workplace absences for a variety of reasons. The legal framework of employer’s duties and obligations in this context is not straightforward, and the Government has also brought in legislation putting into effect a range of special measures on account of the exceptional circumstances of the Coronavirus crisis.

 

This is our summary of legal rights to pay and suggested best practice for different types of absence, which we will continue to update in the light of developments including any further legislation and Government guidance.

 

For health protection reasons, the Government on 20th March required the closure of several categories of premises, including restaurants, cafes and pubs, and the lockdown announced on 23rd  March extended the closure requirements to a wider range of retail premises and other businesses.

 

The Government’s “stay at home” legislation dictates that employees should only be travelling to work where it is not reasonably possible for their work to be done from home, and so their travel to work amounts to a ‘reasonable excuse’ for being outside their home address. Ensure you are encouraging employees to work from home unless it is absolutely necessary they need to be in their normal place of work. Look out for any changes to Government legislation guidance which could require the temporary closure of other workplaces, or which form part of the current lockdown restrictions being gradually relaxed.

Type of absence

Right to pay

Entitled to usual sick leave and sick pay entitlements (contractual/statutory sick pay (SSP)).

The right to SSP is now from day 1 of absence, rather than day 4, for incapacity related to Coronavirus, with effect from 13th March.

Employers with fewer than 250 employees can claim repayment of SSP for up to 2 weeks, under the Coronavirus Statutory Sick Pay Rebate Scheme.

Note that Government guidance advises that someone who has Coronavirus symptoms needs to stay at home for a minimum of 7 days from when their symptoms started.

 

Best practice

Best practice to pay full pay as discretionary sick pay (if not contractually obliged), to encourage employee not to attend workplace and risk contaminating others. Make clear that this is an exceptional step taken in the specific circumstances of the Coronavirus outbreak.

Waive normal requirement to produce a sick certificate after 7 days.

Right to pay

If employee is able to work remotely and does so, entitled to usual pay.

Otherwise, employees are entitled to SSP from their first day of self-isolation if they are unable to work because they are self-isolating at home in line with public health guidance. This guidance advises self-isolation for 14 days if an individual is in the same household as someone showing Coronavirus symptoms.

 

Employees who are ‘shielding’ and unable to work remotely are also entitled to SSP. This is where someone is deemed by public health guidance to be extremely vulnerable due to any underlying health condition, for example people with severe respiratory conditions or undergoing cancer treatment.

 

The right to SSP in these circumstances is from day 1 of absence, rather than day 4, with effect from 13th March.

Employers with fewer than 250 employees can claim repayment of SSP for up to 2 weeks, under the Coronavirus Statutory Sick Pay Rebate Scheme.

 

Best practice

Consider payment of contractual/discretionary sick pay, in order to encourage employee not to attend workplace and to minimise risks of spreading the virus.

Waive normal requirements to produce a fit note after 7 days’ absence. Where an employee is shielding you may ask to see a copy of any letter which they have received telling them that they are clinically extremely vulnerable.

Employers can put shielding employees on furlough leave, so consider this as an option. 

Right to pay

Consider if employee can work remotely from home, or from an alternative place of work. Check if employee comes within the category of medically advised self-isolation or shielding, and so is entitled to SSP.

Otherwise employee is entitled to normal pay unless the employer has an express contractual right not to pay.

 

Right to pay

If employee is able to work remotely and does so, entitled to usual pay.

Check if employee is self-isolating or ‘shielding’ as extremely vulnerable under public health guidance and so is entitled to SSP.

Otherwise no entitlement to SSP or contractual sick pay if they are self-isolating of their own accord. No entitlement to pay if the employee is required to attend work and refuses.

 

Best practice

Discuss with the employee and endeavour to resolve their concerns.

Take into account the employee’s personal circumstances and in particular vulnerable employees, including those who are pregnant, over 70, have relevant health conditions or a weakened immune system. Consider your duties to make reasonable adjustments where employee has a disability.

Consider options of placing the employee on furlough leave, or employee taking a period of holiday leave.

If appropriate (and as last resort), consider disciplinary action if there is no valid reason for the employee to be absent from work.

 

Right to pay

If the employee is also advised to self-isolate because a family member is showing symptoms, then the employee will be entitled to SSP.

Otherwise an employee is entitled to reasonable time off as emergency dependent leave to help someone who depends on them in an unexpected event or emergency. The employee may also be entitled to take unpaid parental leave. There is not a statutory right to pay for time off in this situation.

Click here to read more.

Best practice

How much time off is reasonable for emergency dependent leave will depend on the employee’s particular circumstances in each case. Take into account the employee’s personal circumstances and also those of their family members.

Consider the option of placing the employee on furlough leave. Under the scheme guidance , employees who are unable to work because they have caring responsibilities resulting from Coronavirus, such as needing to look after children, can be furloughed. 

Consider alternative options such as the employee taking paid holiday leave during their absence from work.

Right to pay

Employees entitled to usual pay if they are able to work remotely.

If they cannot work remotely, employees are entitled to usual pay, unless express provisions in their contracts allowing lay-off or short-time working.

 

Best practice

Consider placing relevant employees on furlough leave under the Coronavirus Job Retention Scheme.

Consider alternative options such as:

  • employees agreeing to take this period as paid annual leave
  • introducing ad hoc flexible working arrangements
  • temporary redeployment to other locations.

Right to pay

Consider if employee can work remotely, if so pay as normal.

Eligible for sick pay / SSP if employee is unwell or quarantined under medical advice.

No right to sick pay otherwise, unless employee is entitled under their contract or a relevant policy.

 

Best practice

Consider other options such as employee agreeing to take additional paid or unpaid holiday leave, in particular if their overseas travel was for work purposes.

Investigate potential cover under business travel insurance policies in these circumstances.

If you have any questions, or would like to discuss this further, please contact our employment team on employment@crippspg.co.uk