In order to qualify for statutory sick pay (SSP) an employee must be absent from work due to incapacity.
Where an employee has not, at the point they cease to work, either been diagnosed with COVID-19 or exhibited symptoms, it is unlikely that their absence will meet the definition of a “day of incapacity”:
“A day on which the employee concerned is, or is deemed in accordance with regulations to be, incapable by reason of some specific disease or bodily or mental disablement of doing work which he can reasonably be expected to do under that contract”.
section 151(4), Social Security Contributions and Benefits Act 1992 (SSCBA)
However, regulation 2 of the Statutory Sick Pay (General) Regulations 1982 (SI 1982/894) (SSP Regulations) provides for certain types of absence to be deemed days of incapacity.
Regulation 2 was amended (by the inclusion of a new regulation 2(1)(c)) and an accompanying schedule, so that certain absences related to COVID-19 could be deemed to be days of incapacity.
Since it came into force on 13 March 2020, regulation 2(1)(c) and schedule 1 have been amended numerous times.
In summary, the definition of deemed incapacity for SSP purposes in the SSP Regulations has been extended to include employees who are:
- Shielding and therefore unable to work (see below for links to current gov.uk guidance on National restrictions begin in England from 5 November)
- Self-isolating for one of the following reasons and therefore unable to work:
- Experiencing symptoms of COVID-19 and self-isolating for 10 days (or, if earlier, until the end of the isolation period)
- Living with someone (or in an extended or linked household with someone) who is isolating due to having symptoms of COVID-19, and self-isolating for a period of 14 days (or, if earlier, the end of the isolation period)
- Developed symptoms of COVID-19 while already self-isolating due to a member of the employee’s household having symptoms, and self-isolating for a period of 10 days (or, if earlier the end of the isolation period)
- Been advised through the contact tracing system that they have come into contact with someone who was, at the time, infected with COVID-19, and self-isolating for the duration specified in the notification
- Tested positive for COVID-19 and self-isolating until the later of (i) 10 days from the date the employee first had symptoms or (if earlier) they first tested positive, and (ii) the date that they no longer have symptoms of COVID-19.
- Living with someone (or in an extended or linked household with someone) who has tested positive for COVID-19, and self-isolating until the later of (i) 10 days from the date that the person who has tested positive first had symptoms or (if earlier) they first tested positive and (ii) the date on which the person who tested positive no longer has symptoms of COVID-19.
- They have been advised to self-isolate at home for a period of up to 14 days before their admission date to hospital for surgery or another hospital procedure (applicable from 26 August 2020)
“Symptoms” of COVID-19 in this context means a continuous cough, a high temperature, or a loss of or change in their normal sense of taste or smell.
These provisions amend the statutory right to SSP, however, contractual rights to sick pay will depend on the wording of the employee’s contract of employment and whether the particular type of absence is covered by the language used in the contract.
The current gov.uk guidance on National restrictions begin in England from 5 November is linked here. The definition of those who are clinically extremely vulnerable is linked here.