HCR Law Events

23 September 2020

Employee absence during the pandemic – what you need to know

The Covid-19 pandemic has created many new reasons why an employee may be absent from work. From self-isolation to travel quarantine, many of these absences would have been unknown at the start of 2020. At times, it can be hard to analyse what an employer’s obligations are to each employee and what pay is due to them.  We look here at some of the most common scenarios.

Before considering legal entitlements, it is wise for employers to step back and look at the big picture. Paying full sick pay or full salary, even where not normally due, is likely to make it easier for employees (especially lower earners) to comply with self-isolation. In the long term, widespread compliance reduces local outbreaks and the chances of an outbreak within the workforce itself. Many employers are therefore choosing to create enhanced rates of sick pay where absences are due to Covid-19.

The handling of absence other than personal sickness is also likely to be heavily influenced by the type of workforce involved. Many employers have hugely increased their ability to support remote working and may be able to support working from home (and therefore paying normal salary) for many of the possible types of absence. An employee who is unwell should not be asked to work from home, but many employees will be quarantined or self-isolating whilst feeling physically well.

If an employee has coronavirus, the situation is fairly straightforward. He or she will be entitled to SSP and to their normal contractual sick pay, if any. In response to the pandemic, the government removed the three day waiting period for SSP payments, so SSP can start immediately.

As we move into cold and flu season, we are also likely to see more absences for suspected coronavirus which turn out, after testing, not to be the virus. If the employee cannot work from home, or feels unwell and unable to work, they will be entitled to be treated in the same way as anyone who is absent due to coronavirus, until such time as they get the all clear on a test. After a negative test, if they remain unwell they should be treated the same as any employee who is absent due to sickness.

Another growing category, as we move into autumn, is likely to be those who are required to self-isolate for reasons other than their own illness. These include:

  • Contact from the track and trace system
  • A member of the household having symptoms or a positive test
  • The need to self-isolate prior to a planned hospital admission.

Assuming they cannot work remotely, these employees will be entitled to SSP for the duration of the period of self-isolation.

Occasionally, employers may encounter employees who they believe should be self-isolating, but who have not done so. In this scenario, an employer is entitled to send an employee home as they are not ‘able’ to work, and to pay them in accordance with self-isolation rules. Employers may also wish to apply their own rules which are wider than the legal guidance – for example, sending home a whole team in response to a suspected case, without waiting for a test result or track and trace. As this is a decision by the employer, anyone who cannot work from home has the right to be sent home on full pay.

When travel corridors were introduced, it was hoped that they would allow people to plan holidays with a degree of certainty. Unfortunately, that has not been how the situation developed. As countries have been removed, often at short notice, many employees have found themselves required to self-isolate for 14 days on their return. There is no entitlement to SSP or sick pay in this situation, unless the employee is unwell. It is therefore advisable for companies to develop a policy on how this will be handled.

If the employee cannot work from home, many employers will ask the employee to take unpaid leave, or use additional holiday to cover the 14 day period. It is likely to be helpful to notify all staff upfront of what will happen if their destination is removed from a travel corridor whilst they are away, to set expectations. The few employers who require overseas travel for work during this period should consider paying employees who are required to self-isolate on return, as the employee did not have the option to avoid the travel and therefore the risk of quarantine.

A further category of employee are those who were previously shielding (shielding having concluded other than in local lockdown areas which have given specific notification of continuation) or who are not shielding, but are anxious about returning to the workplace for other reasons.

These employees generally have no entitlement to pay (except SSP for shielding employees in local lockdown areas). Employees in this category will need to be handled on a case by case basis, depending on their circumstances. It may be possible to reassure the employee of the Covid-19 workplace measures and get them back into the office. If the employee’s reason for concern relates to a disability (including mental conditions such as anxiety), the employer will also have a legal obligation to consider reasonable adjustments for that employee, which may include working from home, even if this is not ideal for the employer.

Finally, during lockdown many employees struggled with the closure of schools and nurseries.  With ‘bubble’ closures likely in schools and the potential for children to have suspected Covid-19 symptoms from everyday coughs and colds, many employees will wish to make use of the right to unpaid time off work for emergency care of dependants.

This leave covers a reasonable period where childcare breaks down and we would expect tribunals to take a very relaxed view on how long it was reasonable for employees to be absent in these unprecedented circumstances. As the leave is unpaid, it reflects what many employers would choose to voluntarily negotiate with employees in this situation, but employers should also think creatively about options that would allow the employee to balance work and childcare.

Options such as temporary variation in working hours, reduction in hours or allowing employees to balance childcare and work (as many demonstrated they could manage temporarily during lockdown) allows the employer to ensure that duties are performed, and benefits the employee by meaning they would continue to be paid.

The Covid-19 pandemic is likely to cause continuing disruption through the rest of this year, and potentially into 2021. The time employers spend planning for absence scenarios now is likely to be a good investment in smooth business operation through the winter, and we would be pleased to assist with any particular queries.

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About the Author
Rowena Kay, Associate

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