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Self Isolation and SSP

Updated: Mar 27, 2020

Here are Greystone Legal's F.A.Q.s to some pressing questions at this difficult time.

Please note that new guidance is constantly being issued and so is subject to change. This guidance is up to date as of 18 March 2020 and replaces our guidance issued on 16 March 2020

Can you send an employee home to self-isolate?

If the workplace and the nature of the role allows for remote working then you should consider whether this would be a suitable alternative to sending an employee home for the purposes of self-isolation.

If there is an identified risk that an employee may have been exposed to Covid-19, then it is unlikely to be a breach of the employee’s contract to require an employee to stay at home in the circumstances, assuming there are reasonable and non-discriminatory grounds for concern, and that the matter is dealt with appropriately, proportionately and sensitively.

If you send an employee home from work to self-isolate, what pay are they entitled to?

An employee’s right to pay where their employer sends them home from work will depend upon the precise circumstances of that decision. Where the employee is able to continue to work from home then, subject to any contractual provision to the contrary, they will continue to be entitled to their normal rate of pay.

If they are not able to work from home then consideration will need to be given to the terms of their contract of employment.

If an employee is suspended by the employer on health and safety grounds, because of the possible risk of infection which does not for within the government self-isolation advice, it is likely that they have the right to continue to receive full pay under their contract, particularly if the employee is willing and able to perform work in accordance with their contract.

Some casual or zero hour contracts may have no entitlement to be provided with work and therefore have no entitlement to pay if the employer does not provide them with work.

Where an employer is considering suspension because an employee falls within the circumstances in which public health advice is to self-isolate then the position in terms of pay may be different. In those circumstances, you may direct the employee to return home and seek medical advice.

If the employee falls within the category of people who have been advised in government guidance to self-isolate then they will fall within the new deemed incapacity rules for SSP. In those circumstances it is likely that you could treat them as being on sick leave and pay them SSP (subject to any contractual sick pay policy).

What if the employee has recently returned from a high risk country?

If an employer requiring an employee to self-isolate because they have returned from a high-risk country and they are able to work, you will need to pay the employee full pay for the reasons set out above. This does not seem to reflect the government's intention and so may be subject to change.

Where an employee refuses to attend work due to fears about coronavirus, what action can the employer take and what pay are they entitled to?

If the employee can work from home then this may well resolve the issue.

If not, you would need to consider the current public health advice, the specific reason that the employee is concerned about attending work and whether it would be discriminatory to refuse home working, take disciplinary action, or withhold pay in light of the employee's refusal. You should seek advise from us in these circumstances and it is likely to be a complex issue.

Where an employee self-isolates following either a direction by a medical professional or government guidance, what pay are they entitled to?

Where an individual self-isolates in response to either direction by a medical professional or government guidance they will be deemed incapable under the new deemed incapacity rules for SSP, even if they are not exhibiting any symptoms. They will therefore be entitled to SSP, or any contractual sick pay which may apply in this scenario.

If they employee intends to work during their self-isolation then they may be entitled to full contractual pay.

Does an employee need to provide a fit note?

By law, medical evidence is not required for the first 7 days of sickness. After 7 days, it is for the employer to determine what evidence they require, if any, from the employee. This does not need to be fit note (Med 3 form) issued by a GP or other doctor.

Your employee will be advised to isolate themselves and not to work in contact with other people by NHS 111 or PHE if they are a carrier of, or have been in contact with, an infectious or contagious disease, such as COVID-19.

We strongly suggest that you use your discretion around the need for medical evidence for a period of absence where an employee is advised to stay at home due to suspected COVID-19, in accordance with the public health advice being issued by the government.

You will not need a fit note to be able to reclaim SSP (see below) but you should keep a record of any absences caused by COVID-19.

Can I reduce the hours an employee works or close the place of work?

It is unlikely that you will be able to vary the working hours of employees without their agreement. You should discuss any proposals with Greystone Legal before undertaking any changes.

Can I require employees to take holidays at a specified time?

You can give notice requiring an employee to take notice on a specified date. Such notice must be at least twice the length of the period of leave that the employee is required to take. For example, if you require an employee to take two weeks' leave, you must give at least four weeks' notice to the employee. What to do if an employee becomes unwell whilst at work

If someone becomes unwell in the workplace, the unwell person should be removed to an area which is at least 2 metres away from other people. If possible find a room or area where they can be isolated behind a closed door, such as a staff office. If it is possible to open a window, do so for ventilation.

The individual who is unwell should call NHS 111 from their mobile, or 999 if an emergency (if they are seriously ill or injured or their life is at risk) and explain which country they have returned from in the last 14 days and outline their current symptoms.

Whilst they wait for advice from NHS 111 or an ambulance to arrive, they should remain at least 2 metres from other people. They should avoid touching people, surfaces and objects and be advised to cover their mouth and nose with a disposable tissue when they cough or sneeze and put the tissue in a bag or pocket then throw the tissue in the bin. If they don’t have any tissues available, they should cough and sneeze into the crook of their elbow.

If they need to go to the bathroom whilst waiting for medical assistance, they should use a separate bathroom if available.

What to do if a member of staff or the public with suspected COVID-19 has recently been in your workplace

For contacts of a suspected case in the workplace, no restrictions or special control measures are required while laboratory test results for COVID19 are awaited. In particular, there is no need to close the workplace or send other staff home at this point. Most possible cases turn out to be negative. Therefore, until the outcome of test results is known there is no action that the workplace needs to take.

What to do if a member of staff or the public with confirmed COVID-19 has recently been in your workplace

The government currently advises that closure of the workplace is not recommended. The management team of your office or workplace will be contacted by the PHE local Health Protection Team to discuss the case, identify people who have been in contact with them and advise on any actions or precautions that should be taken.

A risk assessment of each setting will be undertaken by the Health Protection Team with the lead responsible person. Advice on the management of staff and members of the public will be based on this assessment.

The Health Protection Team will also be in contact with the case directly to advise on isolation and identifying other contacts and will be in touch with any contacts of the case to provide them with appropriate advice.

When individuals in the workplace have had contact with a confirmed case of COVID-19 If a confirmed case is identified in your workplace, the local Health Protection Team will provide the relevant staff with advice. These staff include:

  • any employee in close face-to-face or touching contact

  • talking with or being coughed on for any length of time while the employee was symptomatic

  • anyone who has cleaned up any bodily fluids

  • close friendship groups or workgroups

  • any employee living in the same household as a confirmed case

Contacts are not considered cases and if they are well they are very unlikely to have spread the infection to others:

  • those who have had close contact will be asked to stay at home for 14 days from the last time they had contact with the confirmed case and follow the home isolation advice sheet

  • they will be actively followed up by the Health Protection Team

  • if they develop new symptoms or their existing symptoms worsen within their 14-day observation period they should call NHS 111 for reassessment

  • if they become unwell with cough, fever or shortness of breath they will be tested for COVID-19

  • if they are unwell at any time within their 14-day observation period and they test positive for COVID-19 they will become a confirmed case and will be treated for the infection

Staff who have not had close contact with the original confirmed case do not need to take any precautions and can continue to attend work.

Cleaning offices and public spaces where there are suspected or confirmed cases of COVID-19 Coronavirus symptoms are similar to a flu-like illness and include cough, fever, or shortness of breath. Once symptomatic, all surfaces that the person has come into contact with must be cleaned including:

  • all surfaces and objects which are visibly contaminated with body fluids

  • all potentially contaminated high-contact areas such as toilets, door handles, telephones

Public areas where a symptomatic individual has passed through and spent minimal time in (such as corridors) but which are not visibly contaminated with body fluids do not need to be specially cleaned and disinfected.

If a person becomes ill in a shared space, these should be cleaned using disposable cloths and household detergents, according to current recommended workplace legislation and practice. Support for Business

The government has introduced a package of measures to support businesses including:

  • a statutory sick pay relief package for SMEs

  • a Business Rate Relief for small businesses and pubs

  • small business grant funding of £10,000 for all business in receipt of Small Business Rates Relief (SBRR) and Rural Rates Relief

  • grant funding up to £25,000 for businesses in the hospitality and leisure sectors with a rateable value between £15,000 and £51,000

  • the Coronavirus Business Interruption Loan Scheme to support long-term viable businesses who may need to respond to cash-flow pressures by seeking additional finance

  • the HMRC Time To Pay Scheme

Support for businesses who are paying sick pay to employees

The government is preparing legislation to allow small- and medium-sized businesses and employers to reclaim Statutory Sick Pay (SSP) paid for sickness absence due to COVID-19. The eligibility criteria for the scheme will be as follows:

  • this refund will cover up to 2 weeks’ SSP per eligible employee who has been off work because of COVID-19

  • employers with fewer than 250 employees will be eligible - 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

  • you should maintain records of staff absences and payments of SSP, but employees will not need to provide a GP fit note

  • eligible period for the scheme will commence the day after the regulations on the extension of Statutory Sick Pay to those staying at home comes into force

  • the repayment mechanism has yet to be agreed and it is expected to be introduced over the next few months. As such, there may be some delay before employers are repaid.

Support for businesses who pay business rates

The government will introduce a business rates retail holiday for retail, hospitality and leisure businesses in England for the 2020 to 2021 tax year.

Businesses that received the retail discount in the 2019 to 2020 tax year will be rebilled by their local authority as soon as possible.

A £25,000 grant will be provided to retail, hospitality and leisure businesses operating from smaller premises, with a rateable value between £15,000 and £51,000.

Any enquiries on eligibility for, or provision of, the reliefs should be directed to the relevant local authority. Guidance for local authorities on the business rates holiday will be published by 20 March

Support for businesses who pay little or no business rates

The government will provide additional funding for local authorities to support small businesses that

already pay little or no business rates because of small business rate relief (SBBR). This will provide a one-off grant of £10,000 to businesses currently eligible for SBRR or rural rate relief, to help meet their ongoing business costs.

If your business is eligible for SBRR or rural rate relief, you will be contacted by your local authority – you do not need to apply.

Funding for the scheme will be provided to local authorities by government in early April. Guidance for local authorities on the scheme will be provided shortly.

Support for businesses through the Coronavirus Business Interruption Loan Scheme

A new temporary Coronavirus Business Interruption Loan Scheme, delivered by the British Business Bank, is expected to launch in a matter of weeks to support businesses to access bank lending and overdrafts. The government will provide lenders with a guarantee of 80% on each loan (subject to a per-lender cap on claims) to give lenders further confidence in continuing to provide finance to SMEs. The government will not charge businesses or banks for this guarantee, and the Scheme will support loans of up to £5 million in value. This new guarantee will initially support up to £1 billion of lending on top of current support offered through the British Business Bank.

Further details, including on the lenders providing access to this scheme will be announced in the coming days, and the scheme will be available from early week commencing 23 March 2020. Support for businesses paying tax

All businesses and self-employed people in financial distress, and with outstanding tax liabilities, may be eligible to receive support with their tax affairs through HMRC’s Time To Pay service. These arrangements are agreed on a case-by-case basis and are tailored to individual circumstances and liabilities.

If you are concerned about being able to pay your tax due to COVID-19, call HMRC’s dedicated helpline on 0800 0159 559.

Insurance You should check with their insurance providers to see whether you have any cover in place that may assist in these circumstances. Many businesses are unlikely to be covered as most business interruption insurance policies are dependent on damage to property, which will exclude pandemics. Some businesses may have purchased a specific add on relating to notifiable diseases, but some of these will still specify damage to the building. Some businesses may have purchased supply chain or denial of access cover which may meet their needs in this case.

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