Q: What happens if an employee needs to self-isolate?

In accordance with Government advice, if an employee has symptoms, however mild, or is in a household where someone has symptoms, they should self-isolate, as should everyone in their household. These people should not leave their house or go to work and employers should advise them to follow the Government's self-isolation advice and ask for a test. If a test is negative, then isolation is no longer required.

Testing and tracing

From 28 May, those in England, Scotland and Northern Ireland whose tests are positive will be contacted by the NHS test and trace service (Wales is due to start its scheme in early June) or local public health teams via a text, email or by phone. They will be asked for the contact details of anyone they’ve been in close proximity to and about places they have visited. Anyone considered at risk of catching the virus will then be contacted and told to self-isolate for 14 days whether they have symptoms or not. The rest of their household does not have to self-isolate unless someone in the house becomes ill.

Testing and tracing is a public health measure, intended to inhibit the spread of the virus as the country slowly comes out of lockdown. It could potentially reveal hotspots where the infection rate is higher and the government has said this information could lead to ‘local lockdowns’ to tackle flare-ups in towns, schools or workplaces.

(For more on lockdown arrangements in the devolved administrations, see Q: Are the lockdown rules different in Scotland, Ireland and Wales? in our Managing remote working and business closures FAQs.)

An NHS Covid-19 contact-tracing app is currently being trialled that will also (anonymously) alert users when they have been in close contact with someone identified as having been infected by the virus.

Sick pay

The Government announced measures which entitle employees who have coronavirus, or who cannot work because they are self-isolating to Statutory Sick Pay (SSP) from day one. This includes individuals who do not have symptoms, and those in the same household as others who display symptoms and are following government public health advice to self-isolate. The scheme has been extended to cover those instructed to self-isolate by the NHS test and trace service (see above).

The temporary legislation deems individuals who are self-isolating as incapable of work for the purposes of SSP. 

Coronavirus Statutory Sick Pay Rebate Scheme 

Employers with 250 employees or less can recover two weeks of SSP paid to employees for absences due to coronavirus from 13 March 2020 onwards. The scheme applies to both employees with coronavirus and those who cannot work because they are self-isolating. More information is available on the Government website.

Employers do not need see an employee’s fit note to reclaim the payments. Employers who pay more than the current rate of SSP can only claim the current rate amount.

Refunds will be handled by HMRC.

Practical points

Even without the government advice it is good practice for employers to treat self-isolation as sick leave and follow their usual sick pay policy (or agree for the time to be taken as holiday if the employee requests this). Employers could also advise employees to work from home if possible. Treating the employee as being on paid sick leave or as working from home is advisable and justified. It makes sense, otherwise concerns about lost pay could lead to potentially infected people coming into work.

CIPD also recommends that employers that offer contractual sick pay should provide this if a member of staff is asked to self-isolate by a medical professional or the test and trace service even if they have no symptoms. Alternative options to providing sick pay are to allow people who are asked to self-isolate to work from home wherever possible and continue to pay as normal.

Both employers and employees have general implied duties to look after all employees’ health and safety, including complying with self-isolation advice, otherwise workplace colleagues could be exposed to infection.


Q: One of our workers has been confirmed as having the virus, should we close the workplace?

Where a worker has the virus the position is as follows:

  • A worker with a confirmed diagnosis should stay at home with immediate effect and employers should advise them to follow the Government's self-isolation advice and apply for a test

  • If a worker has symptoms, however mild, or is in a household where someone has symptoms, they should self-isolate, as should all in their household. These people should not leave their house or go to work and employers should advise them to follow the latest government advice.

Whether the workplace should be closed entirely is not addressed in the Government advice and it appears employers will have to make that decision.

Staff who were exposed to the infected colleague should be sent home. Government advice states those who have been in recent close contact with an infected person should self-isolate, breaking the transmission chain. Depending on the location of the workplace employers can contact Public Health England, Public Health Scotland, Public Health Wales or Public Health Northern Ireland for advice.

Government guidelines

On 11 May the Government published a guidance document followed by eight sector specific guides containing details of the next phase of managing the Covid-19 pandemic. People who have no symptoms and have not been in contact with an infected person can leave home under a slightly extended list of 'limited purposes'.

People should continue to work from home where possible and only travel to and from work where work cannot be done at home if their workplace is open. All sectors of the economy that are allowed to be open, should be open. This includes (but is not limited to) food production, construction, manufacturing, logistics, distribution and scientific research. Full details of the businesses that are to remain closed for the time being - such as pubs and restaurants - can be found on the government website. Non-essential shops will be able to open from 15 June provided they follow social distancing guidelines.

All employers should follow the ‘Covid-19 Secure’ guidelines, to try and maintain a safe working environment. When travelling, everybody (including critical workers) should continue to avoid public transport wherever possible. If they can, people should instead choose to cycle, walk or, if necessary, drive to work.

Organisations can refer to our Homeworking questionnaire and the Remote working top tips to manage the widespread move to working from home. For employers planning a return to work, please see our Returning to work guidance. Employers should remember that any vulnerable workers due to age, pregnancy or a pre-existing condition should be prioritised for flexible working arrangements during this time.

You can find information on sick pay and the furlough scheme and other business support measures on the Government website.


Q: Are employees who are shielding entitled to Statutory Sick Pay?

Following special provisions due to come into force on 16 April 2020 employees who are shielding are entitled to Statutory Sick Pay for every day they are unable to work.

As well as restrictions on movement for many people during lockdown, and those in self-isolation, there is a third category of persons to whom special rules apply. This group have received letters advising them to shield by remaining at home for at least 12 weeks.  Shielding people are classed as extremely vulnerable and at very high risk of severe illness from coronavirus, for example those with certain types of cancer or suppressed immune systems. 

Employees who are shielding can be furloughed under the Coronavirus Job Retention Scheme or allowed to work from home. If employers choose not to furlough, and home working is not an option, shielding employees will be entitled to Statutory Sick Pay as they are deemed incapable of work for the shielding period. 

Statutory Sick Pay will be available from day one of sickness, although the shielding must last for a minimum of four days in addition to the other eligibility requirements for Statutory Sick Pay.


Q: What happens if an employee contracts Coronavirus? Do they still get full pay or sick pay?

If an employee contracts Coronavirus, this should be treated in the same way as any other sickness absence in terms of payment. If the employer normally only pays statutory sick pay (SSP) during sickness absence, then this is what the employee should receive subject to meeting the qualifying criteria. Employees who are self-isolating in accordance with government advice, or as advised by the testing and tracing service, are also eligible for SSP.

The SSP rules are set out below but employers who can afford to do so may also wish to apply some flexibility, especially if the employee has contracted the virus due to exposure at work, and may consider increasing payment from the SSP amount.

Coronavirus Statutory Sick Pay

The Coronavirus Statutory Sick Pay Rebate Scheme reimburses SSP employers with 250 employees or less for up to two weeks of SSP starting from the first day of sickness. Employers do not need to ask employees for a doctor’s fit note (also known as sick notes) before making a claim.

The scheme covers all types of employment contracts, including full and part-time employees, and employees on agency, flexible and zero-hour contracts. It applies to employees whose periods of sickness started on or after 13 March 2020 and who are unable to work because they:

  • have coronavirus; or
  • cannot work because they are self-isolating at home.

Employers who pay sick pay in excess of the current rate of SSP can only claim the SSP amount.

Requirements

Businesses with 250 employees or less can reclaim the SSP paid for sickness due to coronavirus. The employers must be claiming for an employee who is eligible for sick pay due to coronavirus and have:

  • a PAYE payroll scheme that started on or before 28 February 2020*; and
  • fewer than 250 employees on 28 February 2020.

For connected companies and charities, the total combined number of PAYE employees must be fewer than 250 on the above date.

*This payroll date has not been changed to 19 March to align with the furlough scheme.

Records

Employers must keep records of all the SSPs they are claiming from HMRC for three years including:

  • the reason why an employee could not work
  • details of each period when they could not work, including start and end dates
  • details of the SSP qualifying days when the employee could not work
  • NI numbers of all employees who the employer has paid SSP.

Employees on sick leave or self-isolating in receipt of SSP can be furloughed afterwards. 

More information is available on the government website.


Q: If an employee was asked to self-isolate or has Coronavirus, would it breach privacy to communicate this to the rest of the employees?

An employer has a duty of mutual trust and confidence towards all employees and a duty to take care of all employees’ health and safety.

Revealing the name of the infected employee should certainly not be done without the employee’s permission, as without that permission it could amount to a breach of their data protection rights or right to privacy.

However, the information is likely to leak out anyway and now that testing and tracing systems are up and running (see Q: What happens if an employee needs to self-isolate? above), employees will be contacted in any case if they have been in close proximity to a colleague who has tested positive for Coronavirus.

Employees are more likely to trust the employer’s virus management plans if there is openness about infected persons in the workplace so employers should not try to prevent people finding out, although they may wish to instruct employees not to talk to the media about any cases. Instead employers, employees and the community as a whole need to work together to minimise the virus spread.


Q: Do employees need a medical certificate?

Employees do not need the usual GP's medical certificate for most workplace absences related to coronavirus. This is to allow GPs to focus on patients. Medical evidence is not normally required for the first seven days of sickness (according to the law), ie employees can currently self-certify for the first seven days absence and do not need to get a note from a doctor or NHS 111. 

After seven days, it is up to employer to decide what evidence (if any) they require from the employee. This does not need to be fit note (Med 3 form) issued by a GP or other doctor. Potential situations include:

  • Employees who contract the virus or who are self-isolating for more than 7 days can now apply for an isolation note (if required) through a new online service from the NHS website or mobile phone app.

  • Employees who are self-isolating for 14 days, in accordance with government advice due to a household member with symptoms or following contact from the NHS test and training service, are not sick, so GPs cannot provide certificates for the purpose of illness anyway. If evidence is required by an employer, employees can obtain the isolation note from the NHS website.

  • Employees shielding for 12 weeks may be asked to show a copy of their shielding letter to their employer.

Employers are encouraged to use their discretion concerning the need for medical evidence and to be flexible with notes as an employee might not be able to obtain an isolation note straight away. More information is available on the Government website.


Q: What are the differences between medical suspension, sickness absence and self-isolation?

Most employers should be able to implement sensible plans to respond to the coronavirus (COVID-19) threat assisted by open staff communication and co-operation. In some cases, where there may be a lack of consensus, the legal position may need to be explored further.

Furlough

Furlough is a new concept in the UK workplace. In essence employers can designate employees as a ‘furloughed worker’ where there is no work for them to do due to the coronavirus. The Government reimburse 80% of furloughed workers’ wages to a cap of £2,500 a month. The scheme has now been extended to October and we await new guidance on how the scheme will operate.

Furlough is nothing to do with being sick but relates to downturns in employers’ businesses due to the pandemic. If employees are sick during the furlough period it appears that they can either remain on furlough or be placed onto statutory or contractual sick pay in the usual way and then back onto furlough pay unless normal working has resumed again by the time they recover.

The especially vulnerable who are shielding for 12 weeks in line with public health guidance can be placed on furlough or SSP if the employer agrees.

Suspension on medical grounds

This type of suspension does not cover the Coronavirus situation.

Suspension arises when an employer sends an employee home from work, usually on full pay. Most suspensions occur when employees are being investigated for misconduct and, more unusually, can be imposed for medical health or safety reasons, including during pregnancy to protect the employee.

The phrase 'suspension on medical grounds' is also used as a generic reference to an employer’s decision to suspend employees for medically related reasons to protect other staff. Provided this is brief and on full pay, the suspension is likely to be permissible (although strictly speaking it is not a statutory ‘medical suspension’). This is unlikely to arise in the current pandemic as the suspension should be on full pay and employers are more likely to furlough employees to obtain government support in paying their wages.

Suspension may arise if employees refuse to work from home, or do not follow precautions. There is an implied contractual duty to ensure health and safety of employees. Instructing an employee not to attend work on full pay is likely to be deemed reasonable if there are rational grounds such as trying to prevent the spread of the virus to non-infected employees to honour legal obligations to them.

Sickness absence

Broadly speaking, sickness absence from work is absence that is attributed to sickness by the employee and accepted as such by the employer. In the current Coronavirus context it appears that sickness absence will cover employees:

  • who test positive for the virus; and
  • those with potential virus symptoms; 
  • employees who are shielding, and
  • those who self-isolate because they are following government advice or have been required to by the NHS test and tracing service. Employees can now also apply for online isolation notes.

Employees who are shielding, and those following government self-isolation advice, are therefore likely to be on sick leave even if they have no symptoms, depending on the circumstances.

Self-isolation

Self-isolation means staying at home and avoiding contact with other people in accordance with government advice. Employees with symptoms, those who have been in close contact with a coronavirus-infected person in the UK, or who have travelled to an affected area abroad may need to do this for 14 days to limit infection. Those with symptoms should also apply for a test.

The term 'self-isolation' is used generically and would also cover those doing so as a precaution following more distant contact with an infected person. Statutory sick pay (SSP) is payable to those with symptoms or who self-isolate on government advice. Following emergency government legislation, this should now start on day one in Coronavirus cases rather than after the usual first three days. More information is available on the government website.


DISCLAIMER: The materials provided here are for general information purposes and do not constitute legal or other professional advice. While the information is considered to be true and correct at the date of publication, changes in circumstances may impact the accuracy and validity of the information. The CIPD is not responsible for any errors or omissions, or for any action or decision taken as a result of using the guidance. You should consult the government website for the very latest information or contact a professional adviser for legal or other advice where appropriate.


If you have other queries about COVID-19 not covered above, please contact the CIPD member employment law helpline on 03330 431 217 or visit the Community pages

We know that our members and customers are facing challenging times and we are here to help you. Due to a high number of calls we apologise that your wait time may be longer than usual. We appreciate your patience and will connect you to an expert adviser as soon as we can.

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