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.
Any payment of contractual sick pay over and above SSP in these circumstances will be subject to the terms of employees’ employment contracts, but if employees aren’t actually sick, it’s probably unlikely they’ll be covered by the terms of your contractual sick pay scheme. There is a risk though that if you don’t still pay them some form of discretionary sick pay, they will choose to come to work because they still want to get paid and this could result in the wider spread of the virus. Conversely, just because an employee has been asked to self-isolate doesn’t mean they aren’t capable of still working from home, particularly if they’re not actually ill. Therefore, you might not want to pay discretionary sick pay if the employee can work from home – and if they do work from home, then they’re not abstaining from work so wouldn’t get SSP either.