Insights

Since March 2020, various amendments have been made to Statutory Sick Pay (SSP) as a result of the COVID-19 pandemic. These amendments are relevant to the:-

• Definition of incapacity;
• Payment of SSP;
• Requirement for evidence; and
• Recovery of SSP payments.

Incapacity

In order to qualify for SSP, employees must be absent from work due to incapacity. However, employees may be required to self-isolate without being diagnosed with, or having symptoms of, COVID-19. Such an absence would not have fallen within the pre pandemic definition of incapacity.

Accordingly, in March 2020, the rules on deemed incapacity were changed and the definition of deemed incapacity for SSP purposes in the SSP Regulations was extended to include employees who are:-

Self-isolating for one of the following reasons (and unable to work):

• They are experiencing symptoms of COVID-19;
• They are living with someone who is isolating due to having symptoms of COVID-19;
• They have developed symptoms of COVID-19 while already self-isolating due to a member of the employee’s household having symptoms;
• They have been advised through the contract tracing system that they have come into contact with someone who was, at the time, infected with COVID-19;
• They have tested positive for COVID-19;
• They are living with someone who has tested positive for COVID-19; or
• 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.

Shielding

Shielding was introduced as a measure intended to protect those who are clinically at high risk from COVID-19. It supported qualifying individuals to self-isolate in order to minimise their interaction with others. On 1 August 2020 the Scottish Government paused shielding and, therefore, SSP is no longer payable in the circumstances.

Payment of SSP

Pre pandemic, SSP was only payable from the fourth day of absence. However, since 28^th March 2020. the Coronavirus Act 2020 provides that, where employees are absent from work due to the requirement to self-isolate, SSP is payable from the first day of absence, provided that the employee is self-isolating for at least 4 days in a row (including non-working days).

Requirement for Evidence

SSP is only payable where employees certify their absence. Ordinarily, employees can self-certify for the first seven days. Thereafter, they must acquire a fit note from their GP stating the reason for their absence.

On 17 December 2021 the Statutory Sick Pay (Medical Evidence) Regulations 2021 (Regulations) came into force. These Regulations extend the period of self-certification from 7 days to 28 days. This means that employees are permitted to self-certify their absence for 28 days before they are required to obtain a fit note from their GP.

This extension applies to employees who have a spell of incapacity for work which:-

• Started prior to 17 December 2021, provided that their absence had not lasted for longer than 7 days on the 17 December 2021; or
• Commences on any day during the inclusive period, which starts on the 17 December 2021 and ends on 26 January 2022.

For employers who provide employees with Company Sick Pay in excess of SSP, there may be a Company Sick Pay Policy in place which provides that employees are required to submit a fit note from a GP if they have been absent for a specific number of days.  If this is the case, regardless of the statutory extension, employees who are eligible to receive Company Sick Pay may still be required to obtain a fit note from a GP to receive company sick pay, if they are absent for the relevant number of days.

Recovery of Payments

In March 2020, the Coronavirus Statutory Sick Pay Rebate Scheme (Scheme) was introduced. This Scheme allowed eligible employers to apply to HMRC for reimbursement of the SSP paid in respect of absences due to COVID-19. Eligible employers were those who:

• Had already paid their employees’ SSP;
• Were claiming for an employee who was eligible for SSP due to COVID-19;
• Have a PAYE payroll scheme that was created and started on or before 28 February 2020; and
• Had fewer than 250 employees on 28 February 2020 across all of their PAYE payroll schemes.

The reimbursement was limited to two weeks’ SSP per eligible employee and applied where the first day of incapacity due to coronavirus fell on or after 13 March 2020.

However, on 8 September 2021, the Statutory Sick Pay (Coronavirus) (Funding of Employers’ Liabilities) (Closure) Regulations were made and, from 30 September 2021, the Scheme was closed and funding of SSP reverted to being met entirely by the employer.

Employers had until the 31 December 2021 to make any claims incurred up to and including 30 September 2021.