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Coronavirus FAQs for employers – Updated 12 May 2020

Since the coronavirus outbreak in the UK, the Government has responded with a raft of new measures to help employees and employers. Although the circumstances are exceptional, employers need to take care that they comply with the usual employment law requirements. These changes have been pushed through quickly and are under constant review.

What are the changes to certifying for statutory sick pay (SSP)?

Employees usually have to provide a doctor’s certificate after the first seven days of absence. In a press release, the Government urged employers to use their discretion about what evidence, if any they ask their employees to give. To avoid spreading the virus and doctors’ surgeries becoming overwhelmed, employees can now provide an isolation note from NHS 111. The other usual eligibility criteria for SSP still apply.

Can a self-isolating employee claim SSP?

Yes, where the employee is unable to work from home and is self-isolating following guidance from Public Health England, Public Health Wales or NHS Scotland, they will be able to claim SSP from day one. At the time of writing, this means that they are absent from work because either the employee or someone in their household has symptoms of coronavirus.

When is SSP payable for employees who are unable to work because of coronavirus?

SSP is now payable from the first day of absence; usually it is only payable on day four.

Can an employee claim SSP who is staying at home because they are vulnerable, or they live with someone who is ‘shielding’?

No. The current changes to the SSP regulations do not cover this scenario, however, you may use your discretion to furlough the employee.

Can we claim back SSP?

Smaller businesses (employing less than 250 people) will be able to claim back the first 14 days’ SSP from HMRC. The regulations have now been published.

Do we have to pay company sick pay to self-isolating employees?

This depends on the wording of your contracts or sick pay scheme, but it is unlikely that self-isolating will be expressly covered. The employees will be entitled to SSP and you may wish to furlough them.

What is furlough leave?

An employee who is not working and is temporarily absent from work as a result of the Coronavirus, is described as being on furlough leave.

What government support is there to pay employees on furlough leave?

You will be able to recover up to 80% of your employees’ usual salary or wages (to a maximum of £2,500 per month) plus employer National Insurance contributions and 3% pension contribution through the government’s job retention scheme.

You will need their consent to be furloughed. We can advise you on how to reduce your employee’s salary to ensure all their pay is covered by the scheme. We recommend getting employees to sign a furlough leave agreement (This can be in electronic form to confirm they agree to being furloughed).

When does the scheme start?

The scheme will apply from 1 March 2020 and you can backdate your furlough claims. It was initially for three months, however, it has now been extended until October. The online service portal for employers commenced on 20 April.

Which employees can be furloughed?

There are conditions to be met. The scheme only applies to employees you employed and were on the system for PAYE purposes, on or before 19 March 2020.

If you need to keep some staff working, you will have to make some difficult decisions about who to keep and who to ask to take a furlough.  We can advise you on how to safely select employees to put on furlough leave, without risking discrimination claims. If you have already made employees redundant, you may be able to rehire them and recover salary through the scheme.

What do you need to do to ensure you qualify for Coronavirus Job Retention Scheme (CRJS)?

The employee and employer must both agree for the employee to be put on furlough leave.  The employer must confirm in writing (this can be electronic) that the employee has been furloughed, the period the furlough leave will last (at least 21 days), and the employee agrees to cease all work in relation to their employment. More information and how to apply can be found here: https://www.gov.uk/guidance/claim-for-wages-through-the-coronavirus-job-retention-scheme

Can employees take holiday when on furlough leave?

Employees can take holiday whilst on furlough and they must be paid their usual holiday pay in accordance with the Working Time Regulations. Employers will be obliged to pay the additional amounts over the furlough grant, though will have the flexibility to restrict when leave can be taken if there is a business need. This applies for both the furlough period and the recovery period.

Holidays can be carried over if agreed.

When can I get employees to return from furlough leave?

You should include in your furlough leave agreement that you can require employees to return to work on their usual pay, even if this is before the scheme comes to an end.

We can help you support and retain your staff and manage the difficult employee relations issues arising from these unprecedented challenges.

What are short-time working and lay-off?

Short-time working is working less than half the contractual hours. Lay-off means no work and no pay. You can only put staff on short-time working or lay-off if your contracts include clauses allowing this.

Otherwise you can ask your employees to agree to short-time working or lay-off. This may lead to the employees being able to claim a redundancy payment.  Furlough leave may be a better alternative

For the latest news and more detailed information on the virus visit; https://www.gov.uk/guidance/coronavirus-covid-19-information-for-the-public

Please contact SCE Solicitors, for any further guidance you may require regarding the Coronavirus and your employee policies and practices

Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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