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COVID-19 related absence and sick pay: the current position

COVID-19 guidance continues to change regularly throughout the UK and the Omicron variant has seen soaring levels of absence across all businesses. So what do employers need to know and how can this be managed?

Current isolation and testing rules

At this time and throughout the UK generally, non-exempt individuals are required to self-isolate if they are in close contact with someone who has tested positive. An individual will only be exempt if they are; fully vaccinated, under the age of 18 years and six months, unable to be vaccinated due to a medical reason, or are taking part in an approved COVID-19 vaccine trial. In Scotland, fully vaccinated individuals and those under 18 years and four months have the option to test daily with lateral flow tests instead of self-isolating.

In all cases, individuals who are unvaccinated (or are only partially vaccinated), are required to self-isolate for 10 days if they are notified that they have been in close contact with someone who has tested positive.

What is meant by ‘fully vaccinated’? In England and Wales, this currently refers to having received two vaccines against COVID-19 with an approved vaccine and having received a second dose of the vaccination more than 14 days earlier. However, the government has discussed updating the definition of fully vaccinated to refer to being triple vaccinated once it has been determined that all adults in the UK have had a reasonable opportunity to obtain their booster. In Scotland, individuals already need to demonstrate that they have received a booster dose to be recognised as fully vaccinated and therefore to be exempt from self-isolation requirements.

The rules differ slightly for those who test positive for COVID-19. In England, the latest government guidance allows the self-isolation period to be reduced to five days if the individual tests negative on both days five and six and does not have a temperature. Individuals who are still testing positive must remain in isolation until they have two consecutive negative tests taken on separate days.

In Scotland, if an employee tests positive for COVID-19 then they will be required to self-isolate for 10 days but may be able to end it sooner if they do not have a high temperature and have two negative lateral flow test results on days six and seven of isolation. Likewise, in Wales, those who have tested positive for COVID-19 must self-isolate for seven full days and on days six and seven should then take lateral flow tests. If the results are positive, they should continue to self-isolate until they get two negative results or after day ten of isolation.

The government has also changed the requirement for PCR testing which is no longer required to prove a positive result. Employees can now rely on a lateral flow test to demonstrate that they are COVID-19 positive and therefore unable to work. Some employers have raised concerns that this could encourage dishonest results being submitted by employees who might try and rely on either old or tampered tests. Positive lateral flow tests should still be recorded on the relevant NHS website, which in turn generates an individual confirmation to the employee that they are required to self-isolate. While this doesn’t prevent any test results from being falsified, it puts a certain onus on the employee that employers may find reassuring.

Pay during periods of self-isolation

If an employee is required to self-isolate (either because they have been in close contact or they have tested positive), they will be entitled to statutory sick pay (SSP) if they meet the eligibility criteria. This applies from day one of isolation during the relevant isolation period provided that the total period of incapacity is four days or more.

If an employee is required to self-isolate and they are receiving SSP, as a point of best practice employers should notify the affected employee of the self-isolation grant that provides financial support during the legally required isolation period. Details of the grant can be found separately on the relevant government’s website.

Recognising the rising infection and absence rates, the government has re-introduced the SSP reimbursement scheme for employers with fewer than 250 employees. Employers will be able to re-claim up to two weeks of SSP once the scheme re-opens, which is imminently anticipated.

The costs of company sick pay

If SSP is payable, then what about company sick pay? There is a growing concern amongst employers about the associated cost of supporting company sick pay for unvaccinated employees who are required to self-isolate (which is more likely to occur than with those who have been vaccinated given the current rules outlined above). A growing number of employers have made changes to their company sick pay rules, limiting this to only SSP for unvaccinated employees who are required to self-isolate as a result of close contact with someone who tests positive (albeit usually retaining company sick pay if the employee themselves test positive). Some of those policies are understood to include a carve-out for those who are not vaccinated due to mitigating circumstances, for example medical grounds or pregnancy concerns. This is an important factor which should be taken into consideration on a case-by-case basis to reduce the risk of (most likely indirect) discrimination claims arising. Employers who plan to follow suit should consider if they can objectively justify the decision to reduce sick pay to unvaccinated employees and make sure that this is well documented.

Additionally, they should also carefully consider the wording of their company pay schemes before making such material changes. Is the scheme contractual? If so, is there a contractual right to vary the scheme? Is there an obligation to consult on the proposed change? Changing a contractual term without an employee’s agreement could lead to aggrieved employees and claims that the employer is breaching their contract.

Employers who adapt their company sick pay schemes, or to otherwise enable them to keep track of the various isolation requirements, will need to obtain details of employees’ vaccination status. There are data privacy and employment law considerations that encourage employers to take a cautious approach here. Employers should not pre-empt that the information will necessarily be required in the future and they should be careful about obtaining and storing employees’ vaccination status without cause. Presently it is likely that this information should only be obtained from employees in the event that their self-isolation requirements are a relevant consideration.

Disclaimer

This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2022.

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