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  • Overview

    A change in the law regarding statutory sick pay (SSP) now means that self-certification for sick leave (providing evidence of illness) has been extended from 7 days to 28 days. Previously, employees who are eligible to receive SSP are not normally required to provide medical evidence to their employer to support their absence for the first seven days of absence. The Statutory Sick Pay (Medical Evidence) Regulations 2021 is a temporary measure which is an attempt to relieve pressure on GPs delivering the Covid-19 booster rollout. This change took effect from 17 December however, it applies to spells of incapacity for work which either:

    •    Start during the period 17 December to 26 January; or
    •    Began before 17 December but which have not lasted more than 7 days on that date.

    This will potentially have a huge knock-on effect, especially as businesses manage absences over the Christmas period and following months with the rise of the Omicron variant.
    In order to qualify for SSP, a worker must:

    •    be classed as an employee;
    •    have completed some work for the employer;
    •    earn an average of at least £120 per week; and
    •    have been ill or self-isolating for at least four days, including non-working days in a row.

    SSP is paid at £96.35 per week for up to 28 weeks.

    The effect on Contractual Sick Pay (CSP)

    CSP may be offered to employees, details of which will be included in the employment contract. This pay guarantees employees that they will receive their normal salary when absent during illness. Employer’s often have a policy to ask for a fit note before validating CSP payments. 

    Employers can still request a fit note from an employee within the 28 days self-certification period, however GPs will require payment as the request will be before it is legally required, making it a private medical certificate. Whilst companies would be entitled to do this, it defeats the purpose of the change. There are capacity issues within the NHS, which is likely to become worse and so any request for a fit note from GPs is likely to be delayed. 

    How does this effect those isolating with Covid-19?

    The change only relates to SSP entitlement. Employers are still able to ask their employees that they are sick or are self-isolating. The requirements for this may be contained within the employee’s contract or the staff handbook. Employees must be paid SSP if they cannot work because they are self-isolating following the government’s advice when:

    •    they have Covid-19 symptoms or have received a positive test;
    •    someone in the employee’s household has Covid-19 symptoms or have received a positive test;
    •    NHS track and trace has told the employee to self-isolate; or 
    •    Following doctors’ orders, the employee has been instructed to stay at home.

    Employees are not entitled to SSP if they are self-isolating or quarantining after travel abroad and they cannot work from home; employers can choose to pay contractual sick pay at the same rate as SSP or a higher rate. 

    This change, as mentioned, is only temporary however will have an effect on how employers deal with their employees’ absences from work, therefore, it is something that employers need to be aware of. 

    The Government plans to re-introduce the ability for employers to claim back sick pay paid for Covid related illness absence in mid-January 2022. Detailed announcements will follow.

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