The extension of Statutory Sick Pay to the most vulnerable employees who are shielding during the Coronavirus Epidemic

 

The Statutory Sick Pay (General) (Coronavirus Amendment) (No. 3) Regulations 2020 came into force on 16 April 2020 and apply from this date (they are not retrospective). They extend SSP, where the employee meets the other eligibility criteria for SSP, to those who are:

1. defined in public health guidance as extremely vulnerable and at very high risk of severe illness from coronavirus because of an underlying health condition; and

2. have been advised by a notification (e.g. by their GP or NHS) that, in accordance with that public health guidance, they need to follow rigorously shielding measures for the period specified in the notification i.e. to not leave home.

These Regulations apply in England, Scotland and Wales. It is likely that equivalent regulations will be passed in Northern Ireland shortly to extend SSP to those that have been notified to shield in accordance with guidance published by the Regional Agency for Public Health and Social Well-being in Northern Ireland.

The SSP Regulations do not currently provide for the right to SSP for individuals who cannot attend work because they are ‘social-distancing’ as a result of Public Health advice during the coronavirus epidemic, but have not received notification to shield due to being extremely vulnerable.  However, employers may choose to pay SSP to employees in those circumstances where they are unable to work for this reason, although would not be entitled to reclaim up to 14 days’ SSP in this circumstance.

By way of recap and as previously reported, employees are also eligible for SSP (subject to meeting other eligibility criteria) where they are self-isolating for 7 days due to having coronavirus symptoms, or self-isolating for 14 days due to sharing a household with someone who has coronavirus symptoms.

The waiting days are removed for all these categories of individuals, who are deemed unfit for work due to coronavirus.

Employers may reclaim SSP for up to 14 days for those categories of individuals, once the Coronavirus Statutory Sick Pay Rebate Scheme is in place.

Government guidance states that employers can claim for furloughed employees who are shielding in line with public health guidance (or need to stay home with someone who is shielding) if they are unable to work from home. As set out above, this category of employees are also entitled to SSP. 

The 9 April 2020 update to the government guidance on the Coronavirus Job Retention Scheme (CJRS) states that where furloughed employees become unfit to work during furlough, employers can choose whether or not to move these employees onto SSP or to keep them on furlough, at their furloughed rate of pay. Where a furloughed employee who becomes sick is moved onto SSP, employers can no longer claim for the furloughed salary while they are receiving SSP.  However, the Direction to the Treasury which sets out the legal framework in relation to the CJRS which HMRC is required to follow states that during the first period of SSP entitlement employees cannot be placed on furlough at the time they are receiving SSP or where the employer is liable to pay them SSP (regardless of whether or not SSP is actually paid). Furlough can commence after the SSP period has ended.

Whist shielding employees who were already furloughed prior to 16 April 2020 can continue to receive furloughed wages, the government guidance has not yet been updated to take account of these new Regulations, so it is not yet clear if employees who are entitled to SSP under these Regulations would be excluded from being placed for the first time on furlough from 16 April 2020 in accordance with the wording of the Treasury Direction; or whether the employer would still have the option to furlough shielding employees from this date in accordance with the government guidance. It is likely that the employer continues to have the choice whether to pay SSP to employees who are entitled to SSP or to furlough them and pay furloughed wages, but clarity on this point would be welcome.