Some of the most common COVID-19 workplace sickness absence queries
Despite the lifting of COVID-19 restrictions during summer 2021, businesses are continuing to face unique challenges in the post-lockdown world, particularly in light of the changes in the rules regarding self-isolation, particularly for those who are double jabbed.
In this article, we seek to provide a helpful employers’ Q&A for some of the most common COVID-19 workplace sickness absence queries...
One or more of my employees have tested positive for COVID-19 and are unable to come to work or work from home. Do I need to pay them Statutory Sick Pay?
Employees who are off sick with diagnosed COVID-19, having been notified of a positive test result are legally required to self-isolate for 10 days at home and if they cannot work from home are entitled to the employer’s usual sick leave and pay provisions, including statutory sick pay (SSP). The current rate of SSP is £96.35 per week for up to 28 weeks.
What if one or more of my employees have mild COVID-19 symptoms, but have not been diagnosed and feel fit to work? Do I need to pay them sick pay?
If an employee has very mild COVID-19 symptoms, but claims they are fit to attend work, government guidance states they are required to self-isolate and take a PCR test and they would be entitled to SSP if they cannot work from home.
SSP entitlement is subject to the following:
- SSP is not generally payable during the first three qualifying days of sickness, known as “waiting days” but this provision has been disapplied for Coronavirus cases.
- Despite the above, employees must still have a total period of incapacity for work of at least four days to be eligible for SSP.
In practice, this means that if someone is off sick with Covid-19 symptoms and is subsequently diagnosed with Coronavirus, they are entitled to SSP from the first day of sickness. However, if they are sick for three days or fewer and receive a negative Covid-19 test result in that time, they would not be entitled to SSP. If they are sick for more than three days but do not have Coronavirus, they would be entitled to SSP under the usual (non-Covid) rules and would not receive SSP for the first three “waiting days”.
Employers may want to consider whether in the second or third examples detailed above, whether to exercise its discretion to pay SSP (or enhanced company sick pay if applicable) for the first three “waiting days” given the circumstances.
Do employees who are fully vaccinated need to self-isolate?
Since 16 August 2021, individuals who have been in close contact with somebody who has tested positive for COVID-19 do not need to self-isolate if they are fully vaccinated.
Self-isolation is also NOT required where the individual is under the age of 18, is part of an approved COVID-19 vaccine trial, or is unable to be vaccinated for medical reasons.
Can I encourage employees to be vaccinated?
Yes – the Health and Safety at Work Act 1974 requires all employers to take reasonable steps to reduce any risks to health in the workplace. Therefore, on the basis that vaccines provide protection against COVID-19 to the public at large, encouraging vaccination is an effective means of minimising these health risks.
Can I ask employees for details about their vaccination status?
Potentially you can do, but before you do so, you must consider the implications of collecting ‘special category health data’.
According to guidance published by the Information Commissioner’s Office, collection of vaccination status data must be ‘necessary and relevant for a specific purpose’ for it to be lawful. Perhaps the most sound justification for collecting this kind of data would be the substantial public interest in workplaces complying with legal obligations to minimise the spread of COVID-19.
However, employers should only collect the limited information required, and hold it for no longer than necessary. They should be transparent with employees about why the information is needed, who will be able to access it, how it will be stored and how long it will be retained.
If you wish to proceed with this, we would recommend asking employees to disclose their vaccination status rather than making disclosure mandatory, for two main reasons. Firstly, individuals who share information voluntarily are less likely to make a data protection complaint. Secondly, the ICO would be more likely to view a disclosure policy as proportionate if it had no mandatory element.
We would strongly recommend before proceeding with asking employees about their vaccination status, employers seek further advice as to its potential exposure from a data protection perspective.
What steps should employers take to minimise the risk of COVID-19 transmission and infection in the workplace?
All employers have statutory duties to provide safe places to work for both their employees and anyone who may be accessing their business premises. In order to satisfy and discharge these obligations, employers must take the following steps:
- Carry out risk assessments to identify the various workplace risks. Risk assessments should also consider employees for whom extra health and safety measures should be taken, such as pregnant women or older individuals; and
- Take all reasonably practicable steps to minimise these risks. Note that this is not the same as eliminating the risks altogether.
Importantly, employers are required to carry out a risk assessment even where all employees are working from home, which focuses on the homeworking risks. This includes the risks involved with handling confidential information.
Remember to always consult employees and / or their representatives about workplace safety plans, before they are implemented.
Get in touch
Of course, this Q&A is by no means exhaustive of all employers’ questions during these continually challenging times. If you have any queries relating to the impacts of COVID-19 on employment, please do not hesitate to contact Priya Magar, or one of our employment law specialists, who are available to support you and your business.
All information in this update is accurate at the time of writing. It is meant for general information only and is not legal advice.