Coronavirus (Covid-19) update: To pay, or not to pay?
The coronavirus situation is constantly evolving, with more cases now being reported across the world, including in a number of European countries. As reports of infection rise, Government advice on when individuals should isolate themselves to avoid potential transmission has been broadened. In this update article, we consider the thorny issue of whether employers must continue to pay employees who self-isolate in accordance with such advice.
Latest advice on self-isolation
At the time of writing (25 February), Government advice for travellers returning from high risk areas was as follows:
Anyone who has travelled to the UK from mainland China, Thailand, Japan, Republic of Korea, Hong Kong, Taiwan, Singapore, Malaysia or Macau in the last 14 days and is experiencing cough or fever or shortness of breath, should stay indoors and call NHS 111, even if symptoms are mild.
Anyone who has returned from Hubei Province, Iran, specific lock-down areas in Northern Italy, or specific lock-down areas in South Korea since 19 February should stay indoors, call NHS 111 and avoid contact with other people even if they do not have symptoms. (The specific lock-down areas in Northern Italy and South Korea are identified on the Government website: https://www.gov.uk/guidance/wuhan-novel-coronavirus-information-for-the-public).
Anyone who has returned from Vietnam, Cambodia, Laos, Myanmar, or Northern Italy (anywhere north of Pisa, Florence and Rimini) since 19 February and develops symptoms, however mild, should stay indoors at home, avoid contact with other people immediately and call NHS 111. However, individuals who have returned from these areas but have no symptoms are not required to self-isolate.
Pay for employees who self-isolate following travel
In our previous article on coronavirus, we considered the position of an employer who required an employee returning from a high risk area to self-isolate, taking the view that in these circumstances the employer would remain obliged to pay the employee’s normal pay so long as the employee remained ready, willing and able to work.
Subsequent guidance issued by Acas agrees with our view that an employee should receive their usual pay if they have returned from an affected area and, although they are not sick, their employer asks them not to come in, just in case. However, it goes on to state that there is no statutory right to pay if an employee is not sick but cannot work because they have been told by a medical expert to self-isolate, or have had to go into quarantine.
In our view, if an employee who has been told to self-isolate/go into quarantine by a medical expert or following Government advice is able to work remotely, the simplest solution would be to continue to pay them their normal pay and require them to work at home for the period of self-isolation/quarantine.
The more difficult issue is how to treat an employee, such as a production operative, who cannot do their job remotely and is told to self-isolate/go into quarantine by a medical expert or following Government advice. An employer that withholds pay in these circumstances takes the risk that employees ignore the medical/Government advice and come to work in order to receive their pay, potentially spreading the virus, if they have it. 14 days is a long time to go without pay, particularly for employees who are not highly paid, so the temptation to ignore the advice (potentially even trying to conceal symptoms) would be significant.
The Acas guidance suggests two possible good practice alternatives for employers to address this risk – namely, that the employer could treat the employee’s absence as sick leave and follow their usual sick pay policy, or that they could agree for the time to be taken as holiday. In our view, however, what approach is most appropriate may depend on the particular circumstances:
- If the employer required an employee to travel for work to an area in respect of which Government advice at the time they left the UK required returning individuals to self-isolate, it would be appropriate to continue the employee’s normal pay during a period of self-isolation – whether that was a period of self-isolation with or without symptoms. In this situation, the employee’s need to self-isolate would be a direct result of the employer’s instruction. (See our previous article for consideration of whether an employer can require an employee to travel to such high risk areas at all.)
- If the employer required an employee to travel for work to an area in respect of which Government advice at the time they left the UK did not require those returning to self-isolate, but that advice changed during the employee’s time away so that self-isolation was required on their return, it would also seem reasonable to pay the employee’s normal pay during the period of self-isolation – whether that was a period of self-isolation with or without symptoms. Again, the employee’s need to self-isolate would be a direct result of the employer’s instruction.
- With regard to an employee who has travelled for leisure to an area in respect of which Government advice requires those returning to self-isolate, as noted above, the Acas guidance indicates that it would be good practice to treat this as sick leave and pay the employee sick pay accordingly. We agree that this seems a sensible approach, both for self-isolation with symptoms and self-isolation without symptoms, as the instruction to self-isolate will be confirmed by NHS 111, so is effectively a medical instruction that the employee should not attend work.
- That said, where an employee has travelled for leisure to an area in respect of which Government advice at the time they left the UK required returning individuals to self-isolate, then the employer may wish to withhold any company sick pay and instead limit pay to SSP on the basis that the employee has knowingly put him/herself at risk. However, whether this is possible would depend on the terms of the employee’s contract and the sickness absence policy and any discussions you may have had with the employee prior to their departure – employers should seek advice before withholding company sick pay in these circumstances.
How we can help
More employment issues are likely to arise as the coronavirus situation develops, particularly if outbreaks begin to occur here in the UK. We will continue to keep you updated on relevant employment law questions via the Make UK website. In addition, Make UK members who need HR or legal advice on a specific situation can contact their named adviser, or the Make UK Adviceline on 0333 202 2221.