Whilst we are waiting for more details on the small business funding offered by the Government we thought we would give you more information on Staff and HR…

Homeworking for employees

Employers may want to start considering whether it would be possible for employees to work from home. Some employers will already have a business continuity plan in place and the capacity for their employees to do their job at home which will help to keep business disruption to a minimum.

Employers that haven’t considered home working before should consider carrying out an assessment if home working is expected to take place for an elongated period of time. This will allow employers to review other health and safety considerations and ensure that employees have the necessary equipment for such activities.

Paying employees who have been medically advised to self-isolate

This has been an area of confusion for employers because employees in isolation are often fit for work and have argued that they should receive full pay. However, the health secretary has stated that employees who have been medically advised to self-isolate are staying away from work for ‘medical reasons’ and should receive sick pay, this position has since been confirmed by the Chancellor in his budget speech and Statutory Sick Pay regulations confirm that this should be the case. Periods of self-isolation should be treated as sickness absence and paid accordingly.

The government has announced that Statutory Sick Pay for any COVID-19 related sickness absences will be paid from the first day of sickness absence instead of the fourth day as is usually the case for SSP. Emergency legislation to implement this change is anticipated, it is not yet known whether this change will have retrospective effect to cover sickness absences which started before the legislation is passed. Guidance will be updated when the draft legislation is available.

Employees insisting on coming to work after being advised to self-isolate

You can tell an employee not to come into work if they have been advised to self-isolate as doing so could potentially be putting other employees at risk. Self-isolation absence from work is absence for medical reasons and should be treated as sick leave so the employee should be paid accordingly.

Advising employees who aren’t sure if they should be self-isolating

Employees should be advised to seek clarification from NHS 111 if they are unsure whether self-isolation is necessary. The government has asked that these enquiries are directed to the online service rather than the telephone service. It is important that employees seek this advice before reporting for work.

Can you pay employees full pay if they have been advised to self-isolate?

You can exercise your discretion as an employer to pay full pay in these circumstances which can be helpful in retaining employee engagement during this difficult time. If you decide to exercise your discretion in this way, you should be aware that you must do so consistently and consider that the number of self-isolation cases is likely to increase significantly. This is likely to be further impacted by the Prime Minister’s announcement that anyone with an increased temperature and/or new and continuous cough should enter a 7-day self-isolation period which has been extended to anyone who lives in the same household as someone suffering with these symptoms. The burden on the employer if a policy of full pay were to be consistently applied would need to be carefully considered. If you are not consistent and give full pay to some but not others, this can not only cause resentment among employees but could also lead to discrimination claims.

Employees who have recently returned from an area with confirmed cases of COVID-19 but don’t fall within guidelines to self-isolate

One of your fundamental duties as an employer is to safeguard the health and safety of your employees which should be achieved by following government guidance on COVID-19, this is reviewed regularly and is updated daily at 2:00pm. If the guidance does not require your employee to self-isolate then they should pose no realistic risk to the rest of your workforce. If you are in any doubt then it is reasonable to ask them to check their position by accessing online advice from NHS 111. You could ask them to self-isolate if you wanted to be extra cautious but you would have to pay them full pay as there is no evidence to suggest medical reasons for doing so.

Changes to the Statutory Sick Pay scheme

These are the 3 key changes being introduced to the SSP scheme in relation to COVID-19 periods of sickness absence.

1) When it is payable – Statutory Sick Pay is usually payable from the fourth day of sickness absence but the government has announced that it will be paid from the first day of sickness absence for COVID-19 related sickness absences.

2) Introduction of a rebate system to repay up to 2 weeks Statutory Sick Pay per employee for COVID19 related sickness absences for employers with less than 250 employees as at 28 February 2020.

3) The NHS 111 service will be able to provide an alternative to a GP fit note providing evidence of the reason for sickness absence.

Casual workers on zero hour contracts and SSP

Workers with average weekly earnings of at least £118 (before tax) calculated over a pay reference period of at least 8 weeks may be entitled to Statutory Sick Pay.

To check whether someone meets this threshold, take the last normal pay date before the first complete day of sickness absence and count back to the last normal payday falling not less than 8 weeks from that date. Calculate all earnings within that period and calculate the weekly average on that basis, if the figure is at least £118 then they will be eligible for Statutory Sick Pay.

Paying employees who have been off ill with COVID-19 but haven’t provided a fit note

Employees can self-certify sickness absence for the first 7 days, after that period an employer can require them to produce a fit note from their doctor confirming they are unable to work. However, government advice in respect of COVID-19 is that employees should self-isolate for 14 days and not attend their doctor’s surgery during that time which makes it impossible for them to obtain a fit note. Guidance states that employers should exercise their discretion and not require a fit note to cover this period. Sick pay should not be withheld in the absence of a fit note as this would seem unreasonable in these particular circumstances. If employers require proof for the reason of sickness absence, the Chancellor has announced that employees can obtain this from the NHS 111 service and that this will be acceptable as an alternative to a fit note.

Someone with a confirmed case of COVID-19 has recently been in the workplace, what do you do?

The closure of the workplace in these circumstances is not recommended following government guidance. Public Health England’s local protection team will be in contact with the employer to discuss the case, find out who has been in contact with the individual and advise on actions which should be taken. This may include any necessary quarantine arrangements and cleaning of communal areas.

If you have been advised to close your business

You should close your business if you have been advised to do so. If an employer is unable to provide work, they must usually pay their employees in full. However, if you have a contractual right to lay off without pay, you could rely on this meaning that your employees would only be entitled to payment of statutory guarantee pay for the first 5 workless days which will be their normal rate of pay subject to a statutory maximum of £29 per day. This is pro-rated for part-time employees.

If you do not have a lay off provision in your contract, you could ask your employees to agree to a temporary variation of contract to allow this.

Employees that can’t come to work because their school/nursery is closed

Employees have a legal right to take time off to deal with emergencies relating to their dependents and this includes the unexpected disruption of arrangements for the care of a dependent. In this particular context, a dependent could be the employee’s:

• Spouse or civil partner
• Child
• Parent
• Person living in the same household (not a tenant)
• Any person who reasonably relies on the employee for the provision of care

Usually this time off is unpaid unless your business provides additional contractual benefits to employees in these situations.

Keeping employees safe

Employers should be taking reasonable steps to reduce the risk of people spreading illness at work. It is sensible to review current hygiene practices and remind your employees of the following:

• Covering mouth and nose when coughing or sneezing with a tissue or their sleeve
• Putting used tissues in the bin immediately
• Frequently washing hands with soap and water
• Avoiding close contact with anyone who is unwell
• Don’t touch eyes, nose or mouth if your hands aren’t clean

Employees living in the same house as someone who is self-isolating

If someone in the same house is self-isolating because they’re suspected to be infected or are infected with the virus then it’s likely that your employee will have been medically advised to self-isolate by NHS 111 or the local public health team which would be classed as coming into close contact with an infected person. The employee should not come to work if this is the case and the period of self-isolation would be treated as sickness absence.

Recovering SSP for COVID-19 related sickness absence

The Chancellor announced in his Budget speech that businesses with less than 250 employees will be refunded for the cost of providing SSP to employees who are off work for up to 2 weeks because of the virus. The briefing notes for the Budget reveal the following details for the rebate scheme:

• The refund will cover up to 2 weeks SSP per employee who has been absent because of COVID-19. · Employers with fewer than 250 employees as at 28 February 2020 will be eligible.
• Employers should maintain records of staff absences but employees are not required to provide a GP fit note.

Self-employed people working for your business, self-isolating and SSP

Those who are genuinely self-employed have no entitlement to SSP. In the Chancellors budget speech he announced that those individuals could obtain financial relief by applying for benefits such as Contributory Employment and Support Allowance (ESA) and Universal Credit.

Relief to businesses struggling with the impact of COVID-19

There are several measures being offered to help businesses to cope with the impact of COVID-19 including:

• SSP rebate as mentioned above.
• HMRC – There will be an extension of the Time to Pay programme allowing businesses and the self employed to agree a deferment of tax payments over a period of time.
• Temporary coronavirus business interruption loan scheme – banks will be able to offer loans of up to £1.2 million for small and medium sized businesses and the government will provide an 80% guarantee on these loans with no fees.
• Business rates – any qualifying businesses in the leisure, retail or hospitality sector with a rateable value of less than £51,000 will pay no business rates for the next year.