It’s likely that you’ve seen reports of changes to statutory sick pay (SSP) entitlements in response to the COVID-19 pandemic and, as an employer, you may be wondering what this means for you. We’ve set out below everything you need to know about sick pay during COVID-19.
UPDATE: In England, from 28 September 2020 staff are legally required to notify their employer that they have been advised to self-isolate (including the start and end dates of their isolation period), and employers who knowingly force or allow staff to come into the workplace when they should be self-isolating could face fines of up to £10,000. For more information about employers’ obligations towards self-isolating staff, see Dealing with sickness absence.
1. Statutory sick pay payable to individuals who are self-isolating or shielding during COVID-19
The usual rules are that staff only get SSP if they are not well enough to perform their job. However, the Government has passed emergency legislation to expand this to cover self-isolation. SSP is now payable to:
- individuals who, on or after 13 March 2020, are unable to work because they are self-isolating in accordance with Government guidance (current Government guidance is for anyone with coronavirus symptoms to self-isolate for 7 days, and anyone who lives in their household to self-isolate for 14 days). On 30 July 2020, the Government extended the period of self-isolation for individuals who have symptoms or have tested positive for coronavirus from 7 days to 10 days (or (if later) when those who tested positive stop displaying symptoms of coronavirus). New legislation was brought in on 5 August 2020 to extend their SSP entitlement to cover this period;
- from 6 July 2020, individuals who have to self-isolate because they are in a linked household with someone who is displaying symptoms of or who has tested positive for coronavirus, but note that if that person tests negative for coronavirus, your staff member’s eligibility for SSP will end the following day;
- from 28 May 2020, anyone who has been advised to self-isolate under the Government’s Test and Trace system;
- from 16 April 2020 to those shielding on Government advice due to being identified as extremely vulnerable or at high risk of severe illness. It is open to you, however, to place staff who are shielding on furlough leave rather than pay them SSP if they are unable to work. See our Q&A on Coronavirus Job Retention Scheme extension for further guidance; and
- from 26 August 2020, someone who has received a pre-surgery notification advising them to stay at home for up to 14 days before a hospital admission.
If you have an enhanced sick pay policy, you should apply that instead if your staff member is unable to work because they are self-isolating.
Note that staff who are required (from 8 June 2020) to quarantine for 14 days after returning to the UK and who are not able to work as a consequence, will not be eligible for SSP unless one of the criteria set out above also applies. Equally, if your staff have been furloughed under the Coronavirus Job Retention Scheme, they will not be eligible for SSP.
2. Statutory sick pay is payable from day one for COVID-19 absences
Emergency legislation has been passed to provide for SSP to be payable from day one where absences relate to coronavirus. SSP is not usually payable until staff have been absent for 4 or more days in a row. The new legislation has retrospective effect from 13 March 2020; this means that any coronavirus sickness absences prior to that date only accrued SSP from the fourth day of absence.
In order for SSP to accrue from day one, all of the following must apply:
- your staff member must be unable to work either because they are unwell with coronavirus or because they are self-isolating or (after 16 April 2020) shielding in accordance with Government guidance;
- your staff member must be eligible for SSP (for more information about which of your staff are eligible for SSP, see our Q&A on payment during sickness absence);
- the first day of sickness absence must be on or after 13 March 2020; and
- your staff member must be off work for more than 4 days.
Employers who offer enhanced sick pay should continue to pay that in accordance with their policy during COVID-19.
Note that if sickness absences are not related to coronavirus, the usual rules in relation to SSP will apply.
3. Online ‘isolation notes’ introduced
Staff members can self-certify their sickness absence for the first 7 days. If they are absent for longer than 7 days, you can request proof from them in the form of a ‘fit note’. If your staff member cannot work because they are self-isolating, the Government has introduced online isolation notes as an alternative ‘fit note’. These can be obtained from the NHS Website or NHS 111 online.
Bear in mind that you will not need to produce fit notes in order to reclaim SSP from the Government under its new scheme (see below). It’s therefore up to you whether you require staff to provide evidence or not.
4. Government funding for statutory sick pay under the Coronavirus Statutory Sick Pay Rebate Scheme
The Government has launched its Coronavirus Statutory Sick Pay Rebate Scheme to provide employers with funding to cover COVID-19 related SSP liabilities. The scheme opened for claims on 26 May 2020 and will be administered by HMRC. We’ve set out below who’s eligible and how the scheme will operate.
Which businesses are eligible?
UK based businesses with fewer than 250 employees enrolled in their PAYE payroll scheme as at 28 February 2020 will be eligible for the scheme provided that the business was not already an undertaking in difficulty on 31 December 2019. For those businesses with connected companies, the total number of employees across all connected companies must have been fewer than 250 as at 28 February 2020. Note that if employees transferred to you under TUPE, you can still make a claim for SSP paid to them provided that your PAYE scheme started on or before 28 February 2020 and you had fewer than 250 employees (including those who were transferred) across all PAYE schemes on that date. You cannot, however, make claims for SSP paid by their preivous employer.
To make a claim, employers must have already made the SSP payments due to their staff; claims can only be made in arrears.
Which staff will the funding cover?
The Government has confirmed that the funding will cover all types of employment contracts where those staff are eligible for SSP. This includes full-time and part-time employees, agency workers and casual and zero hours workers. For guidance about which of your staff are eligible for SSP, see our Q&A on Payment during sickness absence.
The Scheme only covers staff who are off work because they:
- have coronavirus symptoms;
- can’t work because they’re self-isolating (eg because someone they live with, or are in an extended or linked household with, has symptoms, or from 28 May 2020 because they’ve been advised to self-isolate under the Government’s Test and Trace system. If they are required to self-isolate prior to surgery, you cannot claim back any SSP paid for the day of surgery or any subsequent dates of absence that are not due to coronavirus); or
- are shielding in accordance with medical guidance.
Statutory Sick Pay is not payable to staff who are in quarantine for 14 days after having returned to the UK during COVID-19 and who are not able to work as a consequence, unless one of the above criteria also applies.
Note that you cannot claim under the Coronavirus Job Retention Scheme and the Coronavirus Statutory Sick Pay Rebate Scheme for the same member of staff for the same period of time. See our Q&A on Coronavirus Job Retention Scheme extension for further guidance about how to furlough a staff member who is off sick or shielding, or what to do if a furloughed worker becomes unwell.
How much funding will businesses get?
The funding will cover up to 2 weeks’ SSP per eligible staff member where their sickness absence relates to COVID-19, starting from their first day of sickness absence. Note that employers can only claim for relevant periods of sickness absence starting on or after 13 March 2020, except if a staff member is off sick because they are shielding, in which case claims can only be for periods starting on or after 16 April 2020.
The current rate of SSP is £95.85 per week. This means that the maximum an employer will be able to claim per eligible staff member is £191.70. Remember that there was a lower rate of SSP from the period of 13 March to 5 April 2020 of £94.25 per week.
Employers who pay an enhanced rate of sick pay will not be refunded for any amounts paid over any above the current rate of SSP, although they can still reclaim the SSP element.
When will the scheme start?
HMRC’s portal for claims went live on 26 May 2020, but the scheme has a retrospective effect. This means that businesses can make claims in respect of sickness absences starting on or after 13 March 2020 for staff members who had coronavirus or were self-isolating, or on or after 16 April 2020 for staff members who were shielding.
There is currently no confirmed end date for the scheme.
How do businesses apply?
Claims can be submitted online using HMRC’s Government Gateway, and therefore employers will need their Government Gateway user ID and password to make a claim. They will also need to provide the following information:
- Employer PAYE scheme reference number;
- A contact name and number for your business;
- Bank account details;
- The total amount of SSP you have paid to your eligible staff for the claim period (which should not exceed the rate of SSP);
- The number of staff you are claiming for;
- The start and end dates of the claim period; this will be the start date of the earliest pay period you’re claiming for (or 13 March if the pay period started before then) and the end date of the most recent pay period you’re claiming for (which must be on or before the date you make your claim since you can only claim in arrears).
Businesses will also be required to make a declaration that they were not already an undertaking in difficulty on 31 December 2019, that the matters stated in their claim are true and accurate and that their receipt of the money will not result in the amount of State aid received by their business exceeding the maximum temporary aid amount.
Businesses can claim for more than one member of staff or for multiple periods at the same time.
How and when will I be paid?
The Government has confirmed that payments will be made by bank transfer in respect of approved claims within 6 working days of the claim.
Are there any other requirements?
Government guidance has indicated that employers will be expected to keep records of staff absences and SSP payments, but that there will be no requirement for them to produce ‘fit notes’ from their staff members in order to apply. Employers can usually request a ‘fit note’ from staff members after 7 days of absence.
Records should include the following information and should be kept for 3 years from the date you were reimbursed:
- the dates your staff member was absent (including start and end dates) and which of those days qualified for SSP;
- the reason for their absence (eg did they have COVID-19 symptoms or did someone in their household); and
- their National Insurance number.
When you are reimbursed, HMRC will also send you a letter containing confirmation of receipt of State aid. You must keep a copy of this letter for at least 4 years from the end of the Brexit transition period (ie 31 December 2024).
If you require a ‘fit note’ because you need proof for the staff member’s absence, note that the Government has launched online isolation notes for staff who are required to provide evidence to their employers that they have been advised to self-isolate after 7 days of absence (see above). If your staff member is shielding, they will have been provided with a written shielding notification specifying the period of time during which they should follow shielding measures. Note that this can be overridden by a further notification advising your staff member that they are no longer required to shield or that they should continue to shield for a further period.
What do I need to do now?
Until you receive any reimbursement you are eligible for, you should keep paying SSP to those who are eligible and keep records which will allow you to reclaim in arrears. These should contain all of the information set out above.
Before joining Sparqa Legal as a Senior Legal Editor in 2017, Frankie spent five years training and practising as a corporate disputes and investigations lawyer at leading international law firm Hogan Lovells. As legal insights lead, Frankie regularly contributes to Sparqa Legal’s blog, writing content across employment law, data protection, disputes and more.