COVID-19: Absences – a practical guide

COVID-19: Absences – a practical guide

Absences relating to COVID-19 are becoming increasingly common and employers need to know how to deal with them before they occur.

Most businesses will have already taken steps to make the workplace safer and will have considered current staff levels. They should now be considering how to deal with future absences relating to COVID-19, particularly for employees whose jobs cannot be carried out at home.

Local lockdowns, temporary school closures, individuals having to self-isolate or those in quarantine having returned from a holiday abroad are all possible scenarios.

Employers will need to be prepared to manage increased absence levels, possibly at very short notice, and consider whether they will continue to pay staff who cannot work. An employer is more likely to be sympathetic towards an employee who self-isolates because they develop symptoms, than an employee who quarantines after a holiday abroad.

Until 31 October 2020, employers may be able to deal with these absences by re-furloughing employees (provided they are eligible). But from 31 October 2020 furlough leave will not be available and so employees will only be entitled to be paid for such absences if they are eligible for SSP and/or contractual sick pay, agree to take holiday during the absence or their employer agrees to pay them*.

Set out below are some key questions for employers to consider:

■ Can employees who need to self-isolate work from home? If so, great, its business as usual. If not, could the employer offer an alternative role for the period of self-isolation?

■ Will employees be entitled to Statutory Sick Pay (SSP)? Those who are unable to work from home may be entitled to SSP under changes to the rules extending entitlement to eligible self-isolating employees. However, SSP will not always be available –currently it has not been extended to those who are required to quarantine after returning from abroad or those who chose to self-isolate because they consider themselves to be clinically vulnerable.

■ Should the employer extend contractual sick pay to those who are self-isolating? SSP is currently capped at a maximum £95.85 per week. This low amount and the fact that not every self-isolating employee will be eligible means that SSP is not an attractive option. This may risk an employee coming back to work prematurely or not self-isolating at all.

■ If contractual sick pay is extended, will there be limitations? For example, an employer may be reluctant to extend sick pay to an employee who needs to quarantine after a trip abroad, particularly if the employee was aware of the quarantine restrictions before they went away. If an employer is going to place exclusions on company sick pay, these should be communicated to staff in advance. From a practical point of view, the earlier an employee knows about an employer’s position, the easier it will be for them to plan and make changes to holidays.

■ Can an employee’s pre-booked holiday dates be amended? Some employers will have carefully planned holiday to ensure staff levels remain consistent throughout the year or to coincide with business shut-downs, such as at Christmas. It will therefore not always be practical for an employee to take holiday at another time in the current leave year. Earlier this year the Working Time Regulations were amended to allow four weeks annual leave to be carried into future leave years if it is not reasonably practicable for an employee to take holiday in the current leave year because of the effects of COVID-19. The purpose of this amendment was to give businesses flexibility to deal with increased demand and disruption to their workforce and may be helpful in some limited circumstances.

■ What action will an employer take if an employee does not self-isolate in circumstances when they are required to do so? Failure to self-isolate could put others within the business at risk and should be dealt with in accordance with the employer’s disciplinary policy.

If an employee has raised concerns about returning to work, an employer should be extremely careful about forcing them to come back as doing so could give rise to employment tribunal claims. By way of example, an employee who has raised health and safety concerns about returning to work may be afforded additional protection under the whistleblowing regime.

Employers need to be clear about their approach to COVID-19 absences and carefully listen to any concerns raised by staff. We recommend putting together a fact sheet, accessible to all staff, setting your policy on COVID-19 related absences at the earliest opportunity. ■

Helen Phillips

Director, JE Solicitors

*Correct at the time of writing (15 September 2020).

Helen Phillips is a Director of JE Solicitors (formerly Just Employment Limited). The firm is a specialist employment law practice dealing with all aspects of employment law, established in Guildford over 20 years ago.