In depth

Self-isolation, sick pay and fines

Gateley Legal

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On 28 September 2020, the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 came into force which introduces for the first time fines not just for individuals who breach the self-isolation rules but also employers who knowingly allow workers to attend the workplace.

The new rules on fines apply in England only but may be extended to the devolved nations in time.

When are employees required to self-isolate?

There are several different situations where an individual is required to self-isolate. 

  • Individuals must self-isolate for at least 10 days from the onset of coronavirus symptoms
  • Individuals without symptoms who test positive must self-isolate for 10 days from the day the test was taken.
  • All those in the same or linked household as an individual with symptoms or who tests positive must self-isolate for 14 days from the first date of the symptoms/test.
  • An individual who is contacted through the NHS Test and Trace system must self-isolate for at least 14 days from the day on which they had contact with the person who tested positive
  • An individual who is waiting for surgery who has been advised by their doctor or clinician to self-isolate for 14 days before being admitted to hospital
  • An individual entering the country from an overseas destination that is not on the Government’s current ‘safe list’ must self-isolate for the quarantine period of 14 days.

It should be noted that a period of self-isolation will only be cut short by a negative test result where the reason for self-isolation was based solely on an individual having symptoms. In all other cases, the full period of self-isolation will apply regardless of the result. 

Sick Pay Entitlement

Employees will be entitled to Statutory Sick Pay (SSP) - currently £95.85 per week – if they fall into any of the self-isolation categories listed above except the last. 

Where an employee is self-isolating due to returning from abroad there is no SSP entitlement during the 14-day quarantine period. An employee should be allowed to work from home if possible, to take a further period of leave or if eligible the employer may agree a period of furlough whilst the Job Retention Scheme is still running. 

Specific changes have been made to the SSP Regulations during the year to help some businesses cope with extra sickness absences. Small and medium-sized employers – defined as having fewer than 250 employees as at 28 February 2020 - can claim reimbursement of 14 days’ SSP per employee for coronavirus-related absences.

Other changes were also aimed at minimising the financial impact on those that must self-isolate. The usual three waiting days before any payment of SSP can be made does not apply where the absence is because of coronavirus.

In England, a new ‘top-up scheme’ was also introduced on 28 September 2020 for individuals who have to self-isolate because of being contacted through test and trace. Employees can claim up to £500 additional support if their income is sufficiently low that they are entitled to Universal Credit and/ or the new style Employment and Support Allowance. This would be paid by the relevant Local Authority rather than the employer. 

Whether the employee will also be entitled to contractual sick pay will depend on the particular employer’s scheme.

New offences

In order to better enforce the self-isolation rules, the new Regulations introduced powers to impose fines where an individual has breached the rules after having tested positive or where they have been contacted by NHS Test and Trace and advised to self-isolate because they have been in contact with someone else with a positive result. 

Employee and agency workers will be under a duty to notify their employer or agency that they are required to self-isolate providing also the start and end dates for the self-isolation period.

For the first time, employers will also be liable to be fined where they knowingly allow or force the employee to attend work in these circumstances. The key issue will be whether the employee has notified the employer that they are required to self-isolate. If they have it should be made clear to the employee that they will not be allowed to attend work for the duration of the self-isolation period. This will obviously not prevent the employer from agreeing that the employee may work from home provided that this is where they are self-isolating.  

In recognition of the huge impact that self-isolation could have on an individual, it has also been made a criminal offence for anyone who has tested positive for Coronavirus to knowingly provide false information about their close contacts to NHS Test and Trace.

The legal requirement to self-isolate applies when an individual is contacted by NHS Test and Trace it does not apply where the new NHS COVID-19 app alerts an individual that they have been in close contact. The information on the app is anonymous.

These new Regulations also do not impact existing powers under which fines can be imposed for breaches of quarantine where someone returns from a country, not on the Government ‘safe list’. The Health Protection (Coronavirus, International Travel) (England) Regulations 2020, which have been in force since 8 June, already provide that a person can be fined up to £1,000 for failing to self-isolate and up to £3,200 for failing to provide accurate contact information. 

More information

For more information regarding the new regulations around self-isolation, sick pay and fines please contact our expert listed below.

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