Disclaimer: These FAQs are intended to provide information and guidance on the HR and employment law implications of the Covid-19 situation. They do not constitute legal advice and should not be relied upon as such.
Employees unable or unwilling to attend work
Last updated: 08/04/2021
- What if an employee is unable to/refuses to come to work because of concerns about coronavirus? Could this be grounds for disciplinary action in some circumstances?
- What about pay for employees who cannot work from home and who are unable/unwilling to attend work due to concerns about coronavirus?
- What is the position for pregnant employees - should they attend work?
- How should employers accommodate employees who cannot work as usual due to childcare issues?
- In what circumstances must employees self-isolate?
- If employees self-isolate, are they entitled to statutory sick pay?
- What if an employee who has already self-isolated once now needs to do so again?
- What if an employee does not want to self-isolate when required, or if we need an employee to come to work when they are meant to be self-isolating?
- Must employers pay company sick pay to employees who are self-isolating?
- Are employees who have to self-isolate entitled to any other payments?
1. What if an employee is unable to/refuses to come to work because of concerns about coronavirus? Could this be grounds for disciplinary action in some circumstances? (Last updated 08/04/2021)
Since 4 January 2021, England has been in a third national lockdown. Under the lockdown rules, everyone must work from home unless they cannot reasonably do so – and it is important to note that this instruction to work from home will remain in place even as lockdown restrictions are gradually eased over the coming months under the Government’s roadmap. However, the guidance acknowledges that working from home may not always be possible in all sectors – including manufacturing – and specifies that employees who cannot work from home are permitted to leave home to attend the workplace.
In the circumstances, however, it is important to acknowledge that some employees may be unable to come into work. For example, those who are clinically extremely vulnerable were advised to follow shielding guidance and not attend the workplace until after 31 March. Since 1 April, the shielding guidance has been relaxed and the clinically extremely vulnerable have been advised that they can return to the workplace if they cannot work from home. The guidance flags that employers are required to take steps to reduce the risk of exposure to Covid-19 in the workplace and should be able to explain to employees the measures they have put in place. Indeed, if an employee who has been away from the workplace because they were shielding now wishes to return to work, we recommend that you conduct a risk assessment to identify whether any particular steps are needed from a health and safety perspective, in addition to the Covid-secure measures you have already implemented in the workplace, to take into account the employee’s individual circumstances. In this context, it is also important to note that the guidance appears to recognise that some clinically extremely vulnerable employees might not feel able to return to the workplace, as it provides that they may remain eligible for furlough under the Coronavirus Job Retention Scheme (the Extended CJRS) throughout the period that it remains in place, provided their employer agrees – see our FAQs on the Extended CJRS for further details. (By way of reminder, those who are considered clinically extremely vulnerable include the approximately 2.3 million individuals who were advised at the start of the pandemic that they are most at risk of severe and life-threatening illness if they contract Covid-19, plus a further 1.7 or so million individuals who were added to the list in February 2021 following an expansion of the definition of ‘clinically extremely vulnerable’, all of whom have been advised by the NHS to ‘shield’ during specified periods of the pandemic. The expansion of the definition of ‘clinically extremely vulnerable’ is based on new modelling that takes into account not just existing health conditions, but also criteria such as ethnicity, deprivation and weight, to determine a person’s risk of becoming seriously ill if they were to contract Covid-19).
Other employees who are not clinically extremely vulnerable may also have particular concerns about coming into work – for example, if they:
- are otherwise considered clinically vulnerable (e.g. those who, even though they are not clinically extremely vulnerable, are at higher risk of developing severe coronavirus and/or may have compromised immunity such as those aged 70 or over, those who have an underlying condition, or those who are pregnant) and are therefore advised to take particular care and minimise their contact with others; or
- live with someone who is clinically extremely vulnerable or otherwise vulnerable whom they wish to protect.
Even employees who do not fall into any kind of vulnerable group may not be able to get to work due to the unavailability of safe means of transport. And even if they are able to travel to work safely, employees may understandably be concerned about their safety in the workplace.
Where an employee has genuine concerns, the employer should listen to them and try to accommodate them where possible. (This is important since, under sections 44 and 100 of the Employment Rights Act, employees are protected from detriment or dismissal where they leave or refuse to attend work in circumstances of danger which they reasonably believe to be serious and imminent. These protections are highlighted in the Government guidance for employees and employers on the implications and options if someone is unable to attend work due to coronavirus. That guidance notes in particular that it may be automatically unfair to dismiss an employee who is clinically extremely vulnerable, or lives with someone who is, if they have refused to attend the workplace on the basis that doing so would present such a serious and imminent danger.) Employers also have a duty to take reasonable steps to provide a safe working environment and, as described in our FAQs on Health and safety measures, there are detailed safety measures that employers should put in place to ensure this.
Note that employers also have an obligation to make reasonable adjustments under the Equality Act 2010 where someone has a disability. Employees who are clinically extremely vulnerable are extremely likely to qualify as disabled under the EqA and many employees who are otherwise considered vulnerable may do so as well. The duty to make reasonable adjustments for disabled employees is flagged in the Government guidance on working safely in factories, plants and warehouses, as is the requirement to take into account employees’ protected characteristics when making decisions, ensuring that any steps you take do not have an unjustifiable negative impact on (i.e. indirectly discriminate against) some groups compared with others. These legal obligations are also highlighted in the Government guidance for employees and employers on the implications and options if someone is unable to attend work due to coronavirus.
In this environment, we generally advise that you exercise caution and seek specific advice if you are considering taking disciplinary action against any members of staff who say that they are unable to attend work due to coronavirus concerns.
2. What about pay for employees who cannot work from home and who are unable/unwilling to attend work due to concerns about coronavirus? (Last updated 08/04/2021)The basic starting point would be that an employee who is not ready, willing and able to work would not be entitled to be paid. However, in the context of the coronavirus pandemic, there are various factors to consider:
- Employees who are clinically extremely vulnerable to Covid-19 who cannot work from home have been eligible for SSP (subject to the general eligibility criteria) for any period for which they have been officially advised to shield and have therefore been unable to attend work, under special regulations that were introduced at the start of the pandemic. Since 1 April, the shielding guidance has been relaxed so the clinically extremely vulnerable are no longer entitled to SSP on the basis of shielding. However, as noted at question 1 above, the guidance for the clinically extremely vulnerable indicates that they would be eligible to be furloughed with furlough pay under the Extended CJRS, which runs until 30 September 2021 notwithstanding the relaxation of the shielding advice – see question 5 of our FAQs on the Extended CJRS for more information. (Note that the above applies not just to those who were originally identified as clinically extremely vulnerable at the start of the pandemic but also to the additional 1.7 million people who were added to the list of clinically extremely vulnerable individuals following an expansion of the definition of that term in February 2021 – see question 1, above).
- Other employees are not entitled to SSP unless they are self-isolating because they or someone in their household/support bubble has tested positive or has symptoms of Covid-19, they have been instructed to self-isolate under the NHS test and trace programme, they have been notified to self-isolate via the NHS Covid-19 app, or they have been advised by a doctor or clinician to self-isolate before being admitted to hospital for surgery and their self-isolation means they are unable to work (i.e. in practice, they are either actually unwell or they are well but cannot work from home) – see further questions 5 and 6, below.
- If an employer wishes to provide financial support to employees who are not entitled to SSP (which it may do, for example, if the employee has particular concerns about attending work because they are considered clinically vulnerable, or live with someone who is clinically extremely vulnerable or clinically vulnerable), the employer could nonetheless allow them to take time off work and pay them an amount equivalent to SSP (or company sick pay, if applicable). If eligible (i.e. if operations are sufficiently affected by Covid-19 – see our FAQs on the Extended CJRS), the employer could alternatively consider placing the employee on furlough under the Extended CJRS. Also note that the employee could be allowed to take a period of paid annual leave, although this would of course be for a limited period only.
- The approach an employer chooses to take to pay where an employee is not clinically extremely vulnerable but is otherwise unwilling to attend work (and cannot work from home) will depend on the facts of each individual case. Employers should be mindful of the possible impact of s.44 and s.100 of the Employment Rights Act (which protect employees from detriment or dismissal where they leave or refuse to attend work in circumstances of danger which they reasonably believe to be serious and imminent). Indeed, as noted at question 1, above, the existence of these protections are flagged in the Government guidance for employees and employers on the implications and options if someone is unable to attend work due to coronavirus. It is also possible that an employee who refuses to attend work raising safety concerns relating to coronavirus might qualify for protection from detriment and dismissal as a whistleblower. Accordingly, if you are considering withholding any pay from an employee who is unwilling to attend work due to safety concerns about coronavirus, we suggest you seek advice on your particular situation. (The situation will, however, be more straightforward if the employee and employer are able to agree a period of unpaid leave.)
In practice, the best approach for employers who need employees to attend the workplace is to put in place all reasonably practicable recommended safety measures to reduce risk (see the FAQs on ‘Health and safety measures’). You will also need to communicate and consult on these measures with the workforce (e.g. via a recognised trade union, or an employee health and safety representative and/or with employees directly) to ensure that employees understand the measures that are in place and that the business is seeking to operate as safely and responsibly as possible.
Keeping abreast of evolving Government advice on Covid-19 is important for any employer who is deciding what approach to take in relation to an employee who is not willing to come to work, as the guidance may change further as the situation develops.
(See also question 3 below, for particular considerations applicable to pregnant employees.)
3. What is the position for pregnant employees – should they attend work? (Last updated 05/01/2021)
- assess workplace risks;
- alter the employee’s working conditions or hours of work to avoid any significant risk;
- where such alteration is not reasonable, or would not remove the risk, offer suitable alternative work on terms that are not substantially less favourable; and
- where suitable alternative work is not available, or the employee reasonably refuses it, medically suspend the employee on full pay.
With this in mind, as the Covid-19 situation continues to evolve, it would be advisable for employers to carry out a risk assessment for all pregnant women, to identify the risks and consider what measures can be put in place to protect them.
Government guidance on Covid-19 for pregnant employees reiterates the importance of conducting a risk assessment and specifies that pregnant employees should only continue working if the risk assessment advises that it is safe to do so. While this applies to all pregnant employees, the guidance advises a particularly precautionary approach for employees who are 28 weeks pregnant and beyond, or who have underlying health conditions that place them at greater risk of severe illness from coronavirus.
4. How should employers accommodate employees who cannot work as usual due to childcare issues? (Last updated 08/04/2021)
While nursery and early years care settings have remained open for all throughout the third lockdown in England, primary and secondary schools were closed except for vulnerable children and the children of critical workers. In the first step towards the easing of lockdown restrictions, all schools reopened to all pupils from 8 March (albeit with some staggering their reopening by a few days to facilitate Covid-19 testing before pupils return). Wraparound care facilities such as breakfast and after school clubs have also reopened. However, there may be limits on the clubs available and some schools may continue to operate staggered start and finish times that could impact upon working parents. In addition, children’s school attendance may be affected by them contracting Covid-19 and/or by instances of Covid-19 arising within schools. For example, the Government guidance to schools flags that:
- Any child who develops Covid-19 symptoms must be sent home from school to self-isolate for 10 days and, as a member of the same household, their parent will also need to self-isolate for 10 days. Household self-isolation can be ended early if the person with symptoms tests negative for Covid-19.
- If a child tests positive for Covid-19, they must self-isolate at home for 10 days, including if they are asymptomatic. As a member of the same household, their parent will also need to self-isolate for 10 days. If a child who tested positive while asymptomatic subsequently develops symptoms during the self-isolation period, they will have to re-start the 10 day self-isolation period from the date their symptoms started.
- Where a child who has attended school tests positive for Covid-19, schools are advised to contact the Public Health England (PHE) advice service, who will help the school to identify who has been in close contact with the child during the period that they were infectious and ensure they self-isolate. This means that schools must send home those people who have been in close contact with the child who has tested positive, advising them to self-isolate for 10 days since they were last in close contact with that person when they were infectious. Close contact is defined quite broadly and includes: face to face contact for any length of time, within 1 metre, including being coughed on, a face to face conversation, or unprotected physical contact (skin-to-skin); contact within 1 to 2 metres of an infected individual for more than 15 minutes; and travelling in a small vehicle, like a car, with an infected person. The guidance recommends that schools keep records of how pupils and staff are grouped together and any close contact that takes place between pupils and staff in different groups, to assist the advice service in identifying who should be sent home to self-isolate.
- If a school has two or more confirmed cases of Covid-19 within 14 days, or an overall rise in sickness absence where Covid-19 is suspected, it may have an outbreak and must call the PHE advice service, who will escalate the issue to the local health protection team and advise if additional action is required. In some cases, the health protection team may recommend that a larger number of other pupils (i.e. not just those who have had ‘close contact’ with the infected person as defined above) self-isolate at home as a precautionary measure. The guidance does not seem to limit this larger group to those in the ‘bubble’ with the child as it refers the possibility of sending the ‘whole site or year group’ home – although it does say that whole school closure will not generally be necessary where schools are implementing systems of controls and reducing transmission risks.
- If a child is sent home to self-isolate for 10 days as a contact of someone who has tested positive for Covid-19, other members of their household do not need to self-isolate unless the child subsequently develops symptoms him/herself. But if the child does subsequently develop symptoms, members of their household will need to self-isolate as well. (If the child gets tested and the test result is negative, as a contact of someone who had tested positive the child will still need to complete the 10 day self-isolation period because they could still develop Covid-19 within the remaining days.)
The above examples demonstrate that many working parents may find themselves unable to come into work, or may have their home working disrupted, over the coming months. They may find themselves self-isolating due to their child being sent home from school with symptoms of, or having tested positive for, Covid-19. Alternatively, their child may be sent home as a contact of/in the same school bubble as someone who has tested positive and may require supervision at home. This situation may be particularly acute where schools are operating regular lateral flow (LFD) testing (at schools or via the provision of home test kits) that picks up asymptomatic cases of Covid-19 among pupils (although this is currently limited to secondary schools). In addition, schools or local health protection teams taking a cautious approach where there are confirmed cases of Covid-19 within a school may react by sending home larger groups of children. If an employer employs many parents whose children attend the same school, it could find itself faced with a sudden and significant shortage of available staff.
In view of all of this, employers may now need to give further consideration to: whether home working would be suitable where employees have young children (bearing in mind the continuing guidance that everyone who can work from home should do so – on which, see question 1, above); what flexibility they can offer on hours in order for employees to work around their children’s demands on their time; what proportion of their workforce may need to take time out; and how they should respond when employees find themselves unable to work/attend the workplace at short notice. Below we consider various options for dealing with the impact of childcare on employees’ ability to work as usual.
Sick leave and pay
If an employee’s child cannot go to school because they have symptoms of Covid-19, or they have tested positive, the employee will also be required to self-isolate – and may therefore be entitled to SSP and potentially also company sick pay (see questions 5, 6, 7 and 9 below).
However, as explained above, if an employee’s child is sent home from school because they are a ‘contact’ of, or part of the same school ‘bubble’ as, someone who has tested positive for Covid-19, the other members of their household would not need to self-isolate. In those circumstances, a parent who has to stay at home to look after their child would not be entitled to SSP.
Furlough under the Extended CJRS
The guidance on the Coronavirus Job Retention Scheme (‘Extended CJRS’) states that employees can be furloughed where they are unable to work because they have caring responsibilities resulting from coronavirus, including looking after children. The possibility of furlough in these circumstances is also flagged in the Government guidance for employees and employers on the implications and options if someone is unable to attend work due to coronavirus. In view of this, employers could consider placing employees on furlough where they have to stay at home/are unable to work because they have to look after a child who is sent home from school – see question 5 of our FAQs on the Extended CJRS for more information.
Emergency leave for dependents
Employees have a statutory right to a reasonable amount of unpaid time off to deal with an emergency involving a dependent (emergency leave). “Dependent” includes a spouse, partner, child or parent, or a person who lives with the employee (but not a lodger). Employees wishing to take emergency leave should inform their employer as soon as reasonably practicable of the reason for their absence and how long they expect to be away from work.
An employee whose child is sent home from school to self-isolate (in circumstances where the employee is not required to self-isolate him/herself) might seek to take emergency leave to care for their child. The right to take emergency leave is a right to a ‘reasonable’ amount of time off. It is intended not as a long-term solution, but rather to allow an employee to deal with an immediate problem and put other care arrangements in place. Ordinarily, it is considered reasonable for an employee to take one or two days off to try to arrange alternative childcare. However, finding alternative childcare in the current circumstances could be problematic. Indeed, if an employee is unable to attend work because their child has been sent home from school to self-isolate, it is unlikely to be appropriate for the employee to ask anyone from outside their household to care for their child. Employers might therefore take the view that a 10 day period of emergency leave is ‘reasonable’ in the circumstances of the pandemic.
(Note that if you subject an employee to detrimental treatment for taking emergency leave, or dismiss them or subsequently select them for redundancy because they took, or sought to take, emergency leave, then they will be entitled to make a claim of detrimental treatment or unfair dismissal to an employment tribunal regardless of their length of service.)
Parental leave, other unpaid leave and annual leave
One possible option if the parent cannot work from home could be a period of unpaid statutory parental leave, as employees are entitled to take up to four weeks of such leave per child, per year. Another option would be a period of unpaid leave outside the statutory scheme.
Alternatively, employees could take paid annual leave if business circumstances permit – although with coronavirus disruption set to last for some time, this is unlikely to cover the entire period impacted by additional childcare requirements.
Dealing with longer term childcare issues
5. In what circumstances must employees self-isolate? (Last updated 30/03/2021)
Self-isolation is an important means of preventing the spread of Covid-19. Here, we summarise the circumstances in which it is required:
Individual develops symptoms of Covid-19
An individual who develops symptoms of Covid-19 (high temperature, new continuous cough, or a change in/loss of sense of taste or smell) must self-isolate for 10 full days following the day their symptoms started.
The Government guidance encourages individuals who have symptoms to get a polymerase chain reaction (PCR) test for Covid-19 as soon as possible. If the individual has a positive test result, they must complete their 10 day self-isolation period. If the individual has a negative test result, they can stop self-isolating provided that: they are well; nobody else in their household/support bubble has symptoms or has tested positive; they haven’t been instructed to self-isolate by NHS Test and Trace; they haven’t been notified to self-isolate via the NHS Covid-19 app; and they are not subject to a period of post-travel quarantine (see below for further details on each of these situations).
Individual tests positive for Covid-19
An individual who tests positive for Covid-19 must self-isolate for 10 full days following the day their symptoms started (or, if they do not have symptoms, the day they took their test).
Self-isolation following a positive Covid-19 test result is a legal requirement and the individual can be fined if they do not comply. In addition, there are potential penalties for employers that require individuals to attend the workplace during their self-isolation period – see question 8, below.
The legal requirement to self-isolate following a positive test result applies whether the test was a PCR test or a lateral flow (LFD) test. PCR tests are primarily used to test people who have symptoms of Covid-19 and are acknowledged to be more accurate than LFD tests. LFD tests are used to test people who do not have symptoms – for example under the Government’s workplace testing scheme (see question 5 of our FAQs on ‘Health and safety measures’). However, individuals who receive a positive LFD test result are now being encouraged to take a confirmatory PCR test and are able to end their self-isolation early if the result of that test is negative and the PCR test was taken within the 2 days following the positive LFD test.
Individuals who test positive for Covid-19 are asked to provide NHS Test and Trace with details of places they have been and people they have interacted with, so that their close contacts can be identified and instructed to self-isolate (see below). In the event that a person who tested positive with an LFD test subsequently receives a negative PCR test result, NHS Test and Trace will inform that person’s contacts that they can stop self-isolating.
Member of individual’s household / support bubble develops symptoms or tests positive for Covid-19
An individual who is in a household or support bubble with someone else who develops symptoms of, or tests positive for, Covid-19 must self-isolate for 10 full days following the day that person’s symptoms started (or, if they do not have symptoms, the day they took their test).
The Government guidance gives the following example of how to work out the self-isolation period: “Your isolation period includes the day the first person in your household’s symptoms started (or the day their test was taken if they did not have symptoms, and the next 10 full days. This means that if, for example, your 10 day isolation period starts on the 15th of the month, your isolation period ends at 23:59 hrs on the 25th and you can return to your normal routine.”
An individual who is self-isolating because someone in their household/support bubble has tested positive for Covid-19 must complete their 10 day self-isolation period even if the individual has a negative test result during that period. However, an individual who is self-isolating because someone in their household/support bubble developed symptoms of Covid-19 can end their self-isolation early if the person with symptoms receives a negative PCR test result.
The regulations that make self-isolation a legal requirement apply in the event that an individual tests positive for Covid-19 or is instructed to self-isolate by NHS Test and Trace. We assume that where a member of an individual’s household/support bubble tests positive, that individual would be instructed to self-isolate by NHS Test and Trace, since they would certainly meet the definition of a ‘close contact’ (see below). Accordingly, we assume that they would be covered by the legal requirement to self-isolate and could be fined for failure to comply (and the penalties for employers that require individuals to attend the workplace during their self-isolation period could also apply – see question 8, below).
If the individual develops symptoms while they are self-isolating, they are advised to get tested for Covid-19. If the test result is positive, they will have to start their 10 day self-isolation period afresh from the day following the date their symptoms started. This means their total self-isolation period will be longer than 10 days.
Individual is instructed to self-isolate by NHS Test and Trace
The NHS Test and Trace programme helps to trace close recent contacts of anyone who tests positive for coronavirus and, if necessary, notifies them that they must self-isolate at home to help stop the spread of the virus. The self-isolation period runs for 10 full days after the day the individual was last in contact with the person who has tested positive.
It is worth noting that the concept of close contact is quite broad and includes:
- having face-to-face contact with someone less than 1 metre away (whether or not wearing a face covering);
- having been within 2 metres of someone for more than 15 minutes (either as a one-off contact, or added up together over one day); and
- travelling in a car or other small vehicle with someone (even on a short journey) or close to them on a plane.
An individual who is self-isolating because they have been instructed to do so by NHS Test and Trace must complete their 10 day self-isolation period even if they have a negative test result during that period. However, Government guidance on confirmatory testing indicates that if the individual was instructed to self-isolate by NHS Test and Trace on the basis of their contact with someone who had tested positive using an LFD test, and that person subsequently receives a negative PCR test result (see above), NHS Test and Trace will contact the individual again and inform them that they can stop self-isolating.
If an individual is instructed to self-isolate by NHS Test and Trace, members of their household/support bubble do not have to self-isolate unless the individual goes on to develop symptoms or tests positive.
It is a legal requirement to self-isolate when instructed to do so by NHS Test and Trace and the individual can be fined if they do not comply. In addition, there are potential penalties for employers that require individuals to attend the workplace during their self-isolation period – see question 8, below.
Individual receives notification to self-isolate via the Covid-19 app
The NHS Covid-19 app has various functions, such as providing information on Covid-19 infection rates by local area, allowing individuals to book Covid-19 tests and enabling them to ‘check in’ to certain venues. However, one of its most important features is as a means of contact tracing, alerting individuals if they have been near other app users who have tested positive for Covid-19 and advising them to self-isolate.
An individual who receives a notification via the NHS Covid-19 app that they have been near someone who has tested positive is advised to self-isolate for 10 full days following the day they were in contact with the person who tested positive. The app includes a countdown timer to help the individual keep track of their self-isolation period.
If an individual is notified to self-isolate via the NHS Covid-19 app, members of their household/support bubble do not have to self-isolate unless the individual goes on to develop symptoms or tests positive.
It is worth noting that the privacy protections and general functionality of the NHS Covid-19 app mean that it is subject to certain limitations. The contact tracing feature is dependent on the individual who tests positive choosing to share that information with the app in the first place. If a person who tests positive doesn’t do this, the app will not be able to notify anyone who was in close contact with them (although some of those people will likely be contacted and instructed to self-isolate by NHS Test and Trace – see above). The app uses an algorithm to assess risk; the guidance indicates that it typically defines close contact as being within 2 metres of someone for 15 minutes or more. However, the app identifies close contacts using the Bluetooth signal of devices that are running the app. It cannot identify whether the people concerned are with their devices at any given time – so, for example, employees who leave their phones in adjacent lockers during their shift may be notified by the app that they should self-isolate as close contacts even if they have been working at opposite ends of the premises. Similarly, the app cannot determine if someone is working behind a Perspex (or equivalent) screen, so that they are fully protected from other people. For this reason, the guidance advises people to pause the contact tracing feature in such situations. In recognition of these limitations, the Government included a carve-out for the app in the regulations that make self-isolation a legal requirement. Accordingly, an individual who is notified to self-isolate via the NHS Covid-19 app is not liable to a fine if they fail to comply. That said, in view of employers’ duty under health and safety law to take all reasonable steps to ensure a safe working environment, employers should nonetheless try to ensure that their employees comply with such notifications. (In addition, if an individual who has been notified to self-isolate via the app submits an application for a Test and Trace Support Payment (see question 10, below) their self-isolation will become a legal requirement.)
Individual is advised to self-isolate before an operation / medical procedure
Where an individual is due to go into hospital for an operation or medical procedure, they (and possibly also their household / support bubble) may be advised by a doctor to self-isolate for a period before this. Whether self-isolation is necessary in such circumstances and, if so, the length of the self-isolation period, is decided on a case by case basis by the doctors involved in the individual’s care.
Individual enters the UK from abroad
Subject to limited exceptions, quarantine rules require all passengers arriving in the UK from overseas, including British nationals and those who live in the UK, to complete a ‘passenger locator’ form online before they travel to the UK and self-isolate for 10 days on arrival.
Quarantine self-isolation is a legal requirement and individuals can be fined if they fail to comply. In addition, there are potential penalties for employers that require individuals to attend the workplace during their quarantine self-isolation period.
For information on the quarantine rules and how they operate, see our FAQs on ‘Managing employees during the pandemic’.
6. If employees self-isolate, are they entitled to statutory sick pay? (Last updated 26/01/2021)
As noted at question 5, above, employees should self-isolate where:
- they develop symptoms of Covid-19;
- they test positive for Covid-19;
- someone in their household / support bubble develops symptoms of, or tests positive for, Covid-19;
- they are instructed to self-isolate by NHS Test and Trace;
- they are notified to self-isolate via the NHS Covid-19 app;
- they are advised to self-isolate prior to an operation / medical procedure; or
- they enter the UK from abroad and have to quarantine.
In most of the above circumstances, where an employee self-isolates and they are unable to work as a result (i.e. in practice, because they are actually unwell, or they are well but they cannot work from home), they will be entitled to receive statutory sick pay (SSP) (and, if relevant, potentially company sick pay). SSP for such coronavirus-related absence is payable from the first day of absence.
The key exception to this is self-isolation during quarantine on entry to the UK, in respect of which there is no entitlement to SSP (see our FAQs on ‘Managing employees during the pandemic’ for details).
It is also worth noting that the regulations that extend SSP entitlement to individuals who are advised by a doctor to self-isolate prior to an operation / medical procedure do not appear to cover members of the individual’s household /support bubble, even though they may also be advised to self-isolate prior to the individual’s time in hospital.
With regard to requiring employees to provide evidence of their entitlement to SSP, Government guidance to business has suggested that employers “use their discretion”. Those who have Covid-19 symptoms or who are advised to self-isolate because they or someone in their household/support bubble have symptoms, or they have been advised to self-isolate by NHS Test and Trace can obtain an “isolation note” by visiting NHS 111 online and completing an online form. This replaces the usual need to provide a ‘fit note’ after seven days of sickness absence. There is an online service that allows employers to check whether an isolation note is valid. The Government has also confirmed that a GP fit note will not be required as evidence for eligible employers to be able to reclaim Covid-19-related SSP from the Government under the Coronavirus Statutory Sick Pay Rebate Scheme.
Note that if an employee who is required to self-isolate in the circumstances set out above is actually able to continue working during their self-isolation (i.e. in effect, they are well enough to work and able to work from home), they would not meet the conditions set out in the relevant regulations for entitlement to SSP. In this regard, it is worth flagging that the guidance for employers on NHS Test and Trace recommends employers should allow employees who are required to self-isolate to work from home if they remain well and if it is practicable to do so, and that this might include finding alternative work that can be undertaken at home during the period of self-isolation. Employees who work from home should continue to receive their normal pay. For employees who are instructed to self-isolate by NHS Test and Trace and cannot work from home, the guidance makes clear that employers must ensure they are receiving sick pay (see above). It also recommends that employers give employees the option to use their paid leave days to cover the period of self-isolation if they prefer (although employers cannot require employees to use annual leave in these circumstances).
7. What if an employee who has already self-isolated once now needs to do so again? (Last updated 05/01/2021)It is entirely possible that some employees who have already had a period of self-isolation and have since returned to work may need to self-isolate again. We think this is an increasingly common issue, particularly given the rise in cases and that individuals must self-isolate with symptoms that may turn out not to be the virus (see question 5, above), e.g. seasonal colds/flu. Employees may also be instructed to self-isolate under the NHS test and trace programme if they have been in close contact with someone who has tested positive for the virus – and, given the breadth of the definition of close contact, it is entirely possible that this could happen multiple times. Indeed, the guidance on self-isolation flags that an individual who develops Covid-19 symptoms at any time after ending a previous period of self-isolation must self-isolate again – as must those in their household/support bubble, and the guidance for people who are contacted under the test and trace programme also acknowledges the possibility of multiple periods of self-isolation, e.g. where someone who completed a period of self-isolation under test and trace develops Covid-19 symptoms him/herself at a later date and needs to self-isolate as a result.
On the issue of pay, there is nothing in the wording of the regulations setting out when someone is deemed incapable of work for SSP purposes in relation to Covid-19 that would appear to restrict entitlement to a single round of self-isolation. Accordingly, our view is that an employee who has to self-isolate more than once would be entitled to SSP (and potentially company sick pay, if relevant) on each occasion.
While an employer can make more than one claim for SSP under the Coronavirus Statutory Sick Pay Rebate Scheme (the SSP Rebate Scheme) for a given employee, the guidance on the SSP Rebate Scheme specifies that they cannot claim for more than two weeks in total.
8. What if an employee does not want to self-isolate when required, or if we need an employee to come to work when they are meant to be self-isolating? (Last updated 26/01/2021)
As noted at question 5, above, it is a legal requirement for individuals who have tested positive for Covid-19, or who have been instructed to self-isolate under the NHS Test and Trace programme, to self-isolate and they can be fined if they do not do so. (Note, we assume that where a member of an individual’s household/support bubble tests positive, that individual would be instructed to self-isolate by NHS Test and Trace; they would certainly meet the definition of a ‘close contact’, so should be caught by the legal requirement.) In addition, the relevant regulations require individuals who are required to self-isolate and due to work during the self-isolation period to inform their employer of the self-isolation requirement as soon as reasonably practicable and in any event before the individual is next due to work. (With regard to agency workers, they must notify either the agency or the hirer of the fact that they are required to self-isolate, and the person whom they notify must pass this information to the other parties involved.)
As flagged in the Government guidance for employees and employers on the implications and options if someone is unable to attend work due to coronavirus, it is an offence punishable by a fine for an employer who is aware of an individual’s legal requirement to self-isolate knowingly to allow the individual to attend any place other than the place where the individual is self-isolating for any purpose relating to their employment. Company directors can be personally liable if the offence is committed with their consent or connivance or is attributable to their negligence.
Fines start at £1,000 but could increase up to £10,000 for repeat offences and for the most egregious breaches. Note that, when the Government announced these changes, it indicated that preventing others from self-isolating would be seen as an egregious breach, giving the example of a business owner who threatens self-isolating staff with redundancy if they do not come to work.
In view of these regulations, an employer should not allow any employee whom it knows is required to self-isolate to attend work for any reason during the self-isolation period. Self-isolating employees who are well enough and are able to do so should be enabled to work from home wherever possible. (For information on employees’ entitlement to pay while self-isolating, see questions 6 and 7 above, and 9 and 10, below.)
Note that the requirement for individuals to notify their employer of the fact that they have to self-isolate and the prohibition on employers knowingly allowing such individuals to attend the workplace also apply in respect of employees who are required to self-isolate on return from overseas travel. (See our FAQs on ‘Managing employees during the pandemic’ for further details on quarantine requirements.)
Even where an employee’s self-isolation is not a strict legal requirement under the regulations referred to above, (e.g. self-isolation due to symptoms without a positive test, or self-isolation following a notification via the NHS Covid-19 app), they should of course not be attending the workplace. Indeed, the guidance on working safely in factories, plants and warehouses advises employers not to allow anyone with symptoms of Covid-19 to enter the workplace – see our FAQs on ‘Health and safety measures’ for further details.
9. Must employers pay company sick pay to employees who are self-isolating? (Last updated 05/01/2021)Many employers operate company sick pay schemes that provide full pay (or pay significantly higher than SSP) for a specified period of sickness absence.
From a wellbeing and employee relations perspective, employers would usually want to continue their company sick pay schemes throughout the Covid-19 pandemic. However, employers are understandably concerned about the cost of maintaining their company sick pay schemes in view of the sheer number of employees who are having to take time off sick as a result of Covid-19, whether because they have tested positive or have symptoms, because they are required to self-isolate where someone in their household/support bubble has tested positive or has symptoms, or because they have been advised to self-isolate under the NHS test and trace programme.
Alternatively, employers might wish to take the view that company sick pay is not payable in cases of self-isolation where an employee is not actually ill, on the basis that any company sick pay policy was not designed to – and does not – cover such circumstances. However, there may be practical difficulties with this, e.g. in relation to the medical evidence you can realistically demand in the current circumstances. In addition, such an approach may create employee relations issues and involve questions of interpretation of the company scheme/contractual change.
10. Are employees who have to self-isolate entitled to any other payments? (Last updated 23/03/2021)
The Government has introduced a Test and Trace Support Payment scheme for individuals on low incomes who are required to self-isolate. This scheme was initially set to run until 31 January 2021 but has since been extended, with the Government’s ‘roadmap’ for gradually lifting lockdown measures confirming that it will continue into the summer. It provides eligible individuals with a one-off payment of £500, payable by the local authority. Individuals will be eligible if they:
- live in England;
- have been asked to self-isolate by NHS Test and Trace or the NHS Covid-19 app, either because they have tested positive for Covid-19 or because they have recently been in close contact with someone who has tested positive;
- have responded to messages from NHS Test and Trace to provide their contact details and, where they have tested positive, the details of their contacts;
- are employed or self-employed;
- cannot work from home and will lose income as a result of self-isolating; and
- are currently receiving, or are the partner of someone in the same household who is receiving, at least one of the following benefits: Universal Credit, Working Tax Credits, income-based Employment and Support Allowance, income-based Jobseeker’s Allowance, Income Support, Pension Credit or Housing Benefit.
If an individual does not meet the criteria for the Test and Trace Support Payment because they are not receiving / are not the partner of someone in the same household who is receiving one of the relevant benefits, they may be eligible for a £500 discretionary payment if they meet all of the other criteria listed above, are on a low income and will face financial hardship as a result of self-isolating.
An individual who is not legally required to self-isolate, but is the parent or guardian of a child who has been told to self-isolate, may be eligible for the Test and Trace Support Payment if:
- the individual is the parent or guardian of a child in their household who is self-isolating, and needs to take time off work to care for them;
- the child is aged 15 or under, or aged 25 or under with an Education, Health and Care (EHC) Plan, normally attends an education or childcare setting and has been told to self-isolate by NHS Test and Trace or by their education or childcare setting;
- the individual is unable to work from home and will lose income because they have to care for the child who is self-isolating;
- they meet all of the other eligibility criteria for a Test and Trace Support Payment or discretionary payment.
Note that local authorities may also set their own additional criteria for eligibility for a discretionary payment.
Individuals who are eligible for either a Test and Trace Support Payment or a discretionary payment will receive the £500 on top of any benefits and SSP that they currently receive. The payments are subject to income tax, but not to NICs.
Individuals wishing to apply for the Test and Trace Support Payment or a discretionary payment should contact their local authority. They will need to provide their NHS Test and Trace Account ID, proof of receipt of one of the qualifying benefits, a bank statement and proof of employment or self-employment. An individual applying as a parent or guardian needing to care for a child who is self-isolating will have to provide their child’s NHS Test and Trace Account ID or a communication from their education or childcare setting telling them to self-isolate. Applications can be made up to 42 days after the first day of the period of self-isolation.