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9 April 2020 | Comment | Article by Louise Price

New Regulations amend employees’ entitlement to Statutory Sick Pay (SSP)

The Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) Regulations 2020 (SI 2020/374) have been published. Although the government has stated for some time now that SSP should be paid from the first day of incapacity when the employee is incapable, or deemed to be incapable, of doing work by reason of COVID-19, these Regulations now make that law. This applies to absences from 13 March 2020.

The above Regulations have also quietly amended the rules on who is entitled to SSP when self-isolating by removing the reference to the public health guidance and instead referring to “the schedule” which has been added to the new SSP Regulations. In summary, only the following categories of people are now automatically entitled to SSP:

  • Those who have symptoms of COVID-19, however mild, and are staying at home for seven days, beginning with the day on which the symptoms started.
  • Those who live with someone who is self-isolating (as above) and are staying at home for 14 days.
  • Those who are already self-isolating in accordance with the second bullet (above), develop the symptoms of COVID-19, however mild, and are staying at home for seven days, beginning with the day the symptoms started.

The above list importantly does not include those employees who are strongly advised to "socially distance" and work from home (the vulnerable category) or those who are shielding in accordance with medical advice (the extremely vulnerable category). Consequently, employees who fall within the vulnerable and extremely vulnerable categories are not automatically entitled to SSP if they choose to stay home from work unless they or a member of their household have symptoms and are self-isolating. Many employers have been paying SSP to these groups of people following the strong suggestion by the previous Regulations that this could be done.

This has complicated the position for employers in respect of what employees who fall within the vulnerable and extremely vulnerable categories are entitled to be paid. The different options currently available to employers in respect of these employees are as follows:

  1. To pay full pay where the employees can work from home;
  2. To send the employees home (possibly on full pay) in the event that they fail to follow government guidance and come into work;
  3. To pay SSP if the employees fall within one of the three categories outlined above; or
  4. To place the employees concerned on furlough leave.

There is no doubt that the changes outlined above will present difficulties for many employers who have employees within the vulnerable and extremely vulnerable categories.

The Employment team at Hugh James has been working closely with businesses during this time to help them navigate through the employment implications caused by the pandemic and will continue to monitor developments coming out from Government.

For further advice on Coronavirus Covid-19 related employment queries please contact our dedicated Employment and HR Services team.

For any other Coronavirus Covid-19 related business advice please visit our dedicated page Coronavirus COVID-19 legal advice & support for businesses.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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