Legislation introduced to provide sick pay for those in self-isolation

The Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 (the “Regulations”) have amended the definition of ‘persons deemed incapable of work’ for the purpose of statutory sick pay (“SSP”) entitlement to include those who self-isolate in accordance with public health guidance. The Regulations come into force on 13 March 2020.

The Regulations have extended the definition to include an individual who is ‘isolating himself [or herself] from other people in such a manner as to prevent infection or contamination with coronavirus disease, in accordance with guidance published by Public Health England, NHS National Services Scotland or Public Health Wales and effective on 12th March 2020; and [who] by reason of that isolation is unable to work’. This relates to the government guidance announced on 12 March 2020 that if individuals have symptoms of coronavirus infection, however mild, they should self-isolate for 7 days.

The regulations will be in force for a period of eight months but will be kept under review by the Secretary of State for Work and Pensions.

The Regulations are silent as to whether those who self-isolate will require a fit note. For those self-isolating for 7 days in response to the government guidance issued on 12 March 2020 they will not require one. However, if an individual then self-isolates for a longer period, for example, 14 days, because they are given a written notice by a registered medical practitioner or Medical Officer for Environmental Health (e.g. the NHS 111 service) they will be deemed to be ‘incapable of work’ for the purposes of the existing legislation governing SSP. This entitlement does require a ‘written notice’ and therefore it would be open to an employer to ask for evidence of this. That being said, employers should be mindful that in the current context, and the inevitable strain on resources it will likely be difficult for employees to obtain such evidence.

It should be noted that these regulations do not affect the legislation which provides that SSP is not payable for the first three days of sickness absence. Although the Government has announced that it will bring forward emergency legislation to provide that SSP will be available from the first day of sickness absence, this legislation has not yet been published.

In the Budget, the government indicated an intention to also extend SSP to those caring for those within the same household who are exhibiting symptoms of COVID-19, but this is not explicitly covered in the new regulations. The carer would only be covered by the new rules on deemed incapacity if the public health guidance also required them to self-isolate.

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