With the ever-changing rules regarding self-isolation and statutory sick pay, this article considers when employers can require their employees to stay away from the workplace and how much they will be required to pay members of staff who test positive for Covid.
As of 24 February 2022, all Covid legislation in England has been scrapped. This includes the requirement for individuals to self-isolate if they test positive for Covid. As a result, even if an employee tests positive for Covid, they can still legally attend the workplace, provided they are well enough to do so.
With that being said, the guidance currently remains that those who test positive should still stay at home and avoid contact with other people for at least 5 full days, and then continue to do so until they have received two negative test results on consecutive days. This advice will remain in place until 1 April 2022.
In Scotland and Wales, the rules on self-isolation remain in place and, as such, no employees should come to work if they test positive for Covid. In Scotland many restrictions will be lifted on 21 March 2022, but there is no clear guidance on whether this will include the current rules on isolation. In Wales, there is currently no indication as to when the self-isolation rules will be lifted.
Currently, statutory sick pay will continue to be payable from day 1 for Covid-19 absences. However, from 24 March 2022, the SSP rules revert to normal, meaning that SSP will only become payable on day 4 of absence. Emma Weedy’s article Living with Covid-19: Closure of SSP Rebate Scheme discusses this in more detail.
However, as explained below, once the guidance regarding self-isolation has been lifted on 1 April 2022, employers may be required to pay full pay if they request that their employees do not come to work and cannot work from home.
This is a difficult issue and is something that may well depend on each individual and the severity of their symptoms. If an employee’s symptoms mean they cannot work, then they should remain away from the workplace and not carry out any duties. They will be entitled to sick pay according to the applicable statutory or contractual rate, in the usual way.
However, if an employee is only suffering from mild symptoms and feels able to work, the answer becomes more complex. If you can allow employees to work from home, then this should be implemented, and the employee should continue to receive full pay for their work as normal. If homeworking is not possible, then the situation will be influenced by the Government rules / guidance in place at the time. Until 24 March 2022, SSP remains payable from day 1 for Covid absences, and so it is best practice to advise employees to stay at home and pay them sick pay as normal.
From 24 March 2022, where the SSP entitlement changes, and from 1 April 2022, where the guidance no longer advises individuals to stay at home when they contract Covid-19, the position is less clear for those who are asymptomatic or only have mild symptoms. Clearly there will be employees who feel well enough to work, and some colleagues who will likely not wish for them to return to work whilst they are likely contagious. The SSP changes mean that there will no doubt be financial pressure on some employees to return, and many employers are likely to experience a situation where Employee A may raise a complaint that Employee B has Covid but is coming to work regardless – Employee A may even refuse to attend work in extreme cases.
Given that employers have a general duty to ensure the health and safety of all employees, it is advised that employers update their sickness policy to encourage employees to inform them of positive Covid tests and explore home-working options wherever possible. If homeworking is not possible, and where the individual does not meet the test to receive SSP (being that they are incapable by reason of some specific disease … of doing work which he/she can reasonably be expected to do under that contract), then an instruction that they stay at home and not work may amount to medical suspension for which the employee should still receive full pay.
An alternative is to allow employees to come to work, however, this leaves employers exposed to complaints or even claims for breach of their duty to protect employees.
This is going to be a difficult matter for employers to navigate over the coming months. Employers should consider the culture of their business and employee expectations. It is likely that employees will all have differing views on whether colleagues should be at work with Covid.
Some employers have already started writing to all their employees to highlight the issue and manage expectations of employees being able to return to the workplace despite having tested positive. Others may wish to do this by updating their sickness policy.
The main take-home for employers should be to ensure that they are transparent in their expectations for employees and remain willing to address concerns of all their staff members.
