As coronavirus starts to spread throughout the UK, many employers are asking what they’re obliged to pay employees who self-isolate on medical advice. What’s the legal position?

As the number of cases of coronavirus in the UK increases on a daily basis, more and more people who develop the flu-like symptoms of the virus are being advised by NHS 111 or Public Health England to self-isolate at home for 14 days and avoid attending work. People who have recently returned from certain areas, including Iran, parts of China and South Korea and quarantined towns in Italy, are being advised to self-isolate even if they’re asymptomatic. The Health Secretary has stated that those who are in self-isolation on medical advice should be treated as if they’re on sick leave and they may therefore be eligible for statutory sick pay (SSP).

The SSP provisions, set out in the Social Security Contributions and Benefits Act 1992, rely on the employee being, or being deemed to be, “incapable” of doing work under their employment contract because of “some specific disease or bodily or mental disablement”. If the employee doesn’t actually have coronavirus, then they probably don’t have a disease or disablement. However, as stated above, the legislation also covers cases where the employee is “deemed” to be incapable of work. The Statutory Sick Pay (General) Regulations 1982 (as amended) then state that this deeming provision will apply on any day on which the employee “is excluded or abstains from work …. pursuant to a request or notice in writing lawfully made under an enactment … by reason of it being known or reasonably suspected that he is infected or contaminated by, or has been in contact with a case of, a relevant infection or contamination”. A relevant infection or contamination is then defined as any incidence or spread of infection or contamination in respect of which public health protection regulations have been made for the purpose of preventing, protecting against, controlling or providing a public health response to such incidence or spread. The Health Protection (Coronavirus) Regulations 2020, which apply in England and came into effect on 10 February 2020, contain a declaration that coronavirus constitutes a “serious and imminent threat” to public health, and the measures set out in those regulations are aimed at preventing or controlling the spread of the virus. Similar regulations do not appear to have been made in Wales yet.

Thus, if an employee in England self-isolates on medical advice (whether from NHS 111, Public Health England, their own GP or a hospital doctor) and they’re given a written notice confirming this, then they’re deemed to be incapable of work and so will be entitled to SSP. However, anyone who voluntarily chooses to self-isolate, or is not given a request or notice in writing, isn’t entitled to SSP.

In Scotland, a relevant infection or contamination is defined as including any infectious disease within the meaning of the Public Health etc. (Scotland) Act 2008 (which would cover coronavirus) to which the provisions on compensation in that legislation apply. Those compensation provisions include where a Scottish health board has requested the individual in writing to be voluntarily quarantined or has made them the subject of a quarantine order. So, if either of these apply, then an employee in Scotland will get SSP.

The budget announced on the 11th March 2020 support for those affected by COVID-19 which includes temporary changes to Statutory Sick Pay (SSP). The measures are aimed at helping to ensure that employees don’t lose out financially where they are asked to stay at home to protect others in the workplace from the virus while also supporting businesses who are experiencing an increase in costs and financial disruption. SSP is currently £94.25 each week rising to £95.85 from 6 April 2020.

Scope of SSP widened

SSP will be extended on a temporary basis to cover:

• individuals who are not ill but are unable to work because they have been advised to self-isolate in line with Government guidance
• SSP will be payable from day 1 instead of day 4 for affected individuals
• People who are advised to self-isolate for COVID-19 will soon be able to obtain an alternative to the fit note to cover this by contacting NHS111 rather than visiting a doctor. This can be used by employees where employers require evidence. Further details to be confirmed.
• Those not eligible for SSP e.g. the self-employed or people earning below the Lower Earnings Limit can now more easily make a claim for Universal Credit or Contributory Employment and Support Allowance.

Reimbursement of SSP

The government plans to help small and medium-sized businesses and employers (fewer than 250 employees) cope with the extra costs of paying COVID-19 related SSP by refunding eligible SSP costs as follows:

• the refund will be cover up to two weeks per eligible employee who has been off work because of COVID-19
• the size of an employer will be determined by the number of people they employed as of 28 February 2020
• employers will be able to reclaim expenditure for any employee who has claimed SSP (according to the new eligibility criteria) as a result of COVID-19
• employers should maintain records of staff absences, but should not require employees to provide a GP fit note. An alternative fit note will be available shortly through NHS111
• the eligible period for the scheme will commence from the day on which the regulations extending SSP to self-isolators come into force
• while existing systems are not designed to facilitate such employer refunds for SSP, the government will work with employers over the coming months.

Employees are entitled to receive SSP where they’ve self-isolated on medical advice and pursuant to a written notice. If they voluntarily self-isolated, or they don’t have a request or notice in writing, then they’re not entitled to SSP. If the employee works from home during their self-isolation, they won’t get SSP as they’ve not abstained from work.