What are your obligations?

Schools reopening, students back at universities, more workplaces trying to return to normal, together with increased socialising, has resulted in more COVID-19 cases. Employers will inevitably find themselves having to deal with more employees being required to self-isolate and also exposed to the risk of contracting it.

Employees being absent due to having to self-isolate raises issues as to whether these employees are entitled to statutory sick pay (SSP) / contractual sick pay.

When is SSP payable?

In order to qualify for SSP, an employee must be absent from work due to incapacity. Where an employee has not, at the point they cease to work, either been diagnosed with COVID-19 or exhibited symptoms, it is unlikely that their absence would meet the definition of “incapacity”.

As a result, in order to cover this situation, the deemed incapacity rules in the SSP regulations have been extended to explicitly include employees who are self-isolating or shielding and unable to work from home as provided by the inclusion of a new regulation 2(1)(c) and an accompanying schedule to regulation 2 of the Statutory Sick Pay (General) Regulations 1982 (SSP Regulations), so that certain absences related to COVID-19 could be deemed to be days of incapacity.

Since this came into force on 13 March 2020, both regulation 2(1)(c) and Schedule 1 have been amended numerous times. Currently as of 21 September 2020, employers are required to pay SSP in the following circumstances for employees who are self-isolating for one of the following reasons and therefore unable to work:

1. Experiencing symptoms of COVID-19 and self-isolating for 10 days (or, if earlier, until the end of the isolation period).
2. Living with someone (or in a support bubble with someone which is being referred to as a ‘linked household’ in England) who is isolating due to having symptoms of COVID-19, and self-isolating for a period of 14 days (or, if earlier, the end of the isolation period).
3. Developed symptoms of COVID-19 while already self-isolating due to a member of the employee’s household having symptoms, and self-isolating for a period of 10 days (or, if earlier the end of the isolation period).
4. Been advised through the contact tracing system that they have come into contact with someone who was, at the time, infected with COVID-19, and self-isolating for the duration specified in the notification.
5. Tested positive for COVID-19 and self-isolating until the later of (1) 10 days from the employee first had symptoms or (if earlier) they first tested positive, and (2) the date that they no longer have symptoms of COVID-19.
6. Living with someone (or in a support bubble with someone which is being referred to as a ‘linked household’ in England) who has tested positive for COVID-19, and self-isolating until the later of (1) 10 days from the date that the person who has tested positive first had symptoms or (if earlier) they first tested positive and (2) the date on which the person who tested positive no longer has symptoms of COVID-19.
7. They have been advised to self-isolate at home for a period of up to 14 days before their admission date to hospital for surgery or another hospital procedure – this has been applicable from 26 August 2020.

Is an employee entitled to contractual sick pay where they are self-isolating as per point 2 above?

This will depend on the terms of the contract of employment and the relevant sick pay policy you have in place. If, for example, the contract or policy, you have in place, provides that contractual sick pay is payable whenever SSP is payable, meaning that the same eligibility criteria apply, you would need to make payment in full where SSP is triggered by self-isolation, whether or not the employee is actually suffering symptoms.

However, this would be unusual as contractual sick pay is triggered by sickness only. The majority of contracts will define incapacity as any, sickness, injury or other medical disorder or other condition which prevents the employee from carrying out its duties. If this is the case then it is unlikely that self-isolation, in the absence of symptoms or a diagnosis, would be caught. As a result, you would not need to pay contractual sick pay in this situation.

This summary guidance note reflects the law at the time of writing. It should not be seen as a substitute to full legal advice and we would always recommend taking advice on your specific circumstances.

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