Update 2: coronavirus advice note for employers

COVID-19 is a new virus which has not previously been seen in humans. This means that there is currently no immunity in the population and no available vaccine. The NHS has been placed on the highest level of alert (Operation Level 4) and, as of today, there have been 85 confirmed cases in the UK. The number of cases outside China now exceeds those within China (where the outbreak began) indicating the global spread of the disease. 

On 3rd March 2020 the Government outlined COVID-19 Action Plan (Action Plan). The Action Plan states that “in a stretching scenario it is possible that up to 1/5th of employees may be absent from work” due to COVID-19 and its effects.

What is the position on paying employees who self-isolate?

Employees who are self-isolating but do not have any symptoms of COVID-19 are not absent from work due to sickness. This would ordinarily mean that they would not be entitled to Statutory Sick Pay or any relevant contractual sick pay. This is the current situation for employees in Wales.

However, in England, the Health Protection (Coronavirus) Regulations 2020 (the Coronavirus Regulations) state that employees who are required to self-isolate and are given a PHE Notice (which would typically be issued by the person’s GP or 111) are entitled to receive statutory sick pay (SSP) (currently £94.25 per week but due to rise on 1 April). A similar position has been reached in Scotland by adding Coronavirus to the list of infectious diseases covered by the equivalent Scottish legislation. There is currently no equivalent in operation in Wales although this is likely to change in the coming days. The Prime Minister announced today that the usual 3 waiting days would “soon” be disapplied for absences related to COVID-19, allowing employees to be paid from the first day of absence. However, as at today’s date, the usual rules on waiting days continue to apply. 

We understand that, at the present time, NHS 111 is asking employees to obtain a PHE Notice from their GP rather than issuing them themselves. This is likely to cause delays for employees seeking to obtain these Notices. Employers should take a common-sense view in the event that an employee is unable to obtain a PHE Notice in a timely manner owing to third party delay. The 111 website has a situation-specific questionnaire which can be completed and confirms whether a specific person should be self-isolating. Employers may choose to accept this evidence as sufficient to begin paying SSP in advance of any formal PHE Notice compelling them to. 

The Coronavirus Regulations do not deal with the situation in relation to contractual sick pay (if employers pay enhanced sums to those off sick in excess of SSP).  ACAS has gone on record to say it is “good practise” to pay contractual sick pay as well in these circumstances and it is strongly advised that employers treat notified self-isolation as being, effectively, ‘sickness’ from the point of view of any entitlement to contractual sick pay as it is acknowledged that the absence is lawful and authorised. The fact that the employee is not technically ‘sick’ is a difficult differentiation to make.

Obviously, if an employee in self-isolation begins to show symptoms then they will then be regarded as absent due to sickness and should definitely be paid in accordance with standard SSP and, if relevant, contractual entitlement.

What about paying self-isolating atypical workers?

Workers, those working on Zero Hours Contracts and Agency Workers who can demonstrate that they earn in excess of £118 per week will be eligible for SSP if they self-isolate with the appropriate PHE Notice or are otherwise sick.

Consultants and those who are genuinely self-employed have no entitlement to SSP in any circumstances, including notified self-isolation.

What is the situation with pay if the employer requires staff to leave the workplace?

If the employer requires its employees to temporarily leave the workplace owing to a downturn in work associated with COVID-19 then unless there is an express lay-off provision in the contract of employment, all employees who are otherwise ready and willing to attend work would be entitled to full pay during any shutdown.

If the employer requires its employees to leave the premises in order to allow for a deep clean or other preventative measures then it should pay its employees as if they were in work. In these circumstances, losses could be mitigated by utilising remote working if this is possible. This is what Deloitte did at its London Office when it required deep cleaning after a confirmed case amongst its staff (4th March 2020). 

The position is the same if the employer has concerns regarding an employee and decides to take a conservative approach by requiring that employee to stay away from work in circumstances where they are not required to self-isolate and are not sick - the employee should still receive full pay.

What financial help is currently available for employers impacted by COVID-19?

The Action Plan and Government advice to employers say very little on this. There is no specific financial assistance scheme currently in operation to assist employers impacted financially by COVID-19. However, the Action Plan does mention that “for businesses facing short term cash flow issues an effective mitigation already exists in HMRC’s Time to Pay system. 

This is offered on a case by case basis if a firm or individual contacts HMRC about falling behind on their tax”. No other potential state assistance is detailed in the Action Plan or elsewhere at the present time.