COVID-19: amended regulations confirm Statutory Sick Pay for shielding employees

Yesterday (Thursday 16 April) the Statutory Sick Pay (Coronavirus Amendment) (No 3) Regulations 2020 came into force. This amendment now includes shielding as a period of incapacity for Statutory Sick Pay (SSP) purposes which means SSP is payable for these periods.

Under the Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) Regulations 2020 which came into force on 28 March, only symptom-based and household isolation periods were classed as periods of incapacity for SSP purposes.

We’ve had a few queries about whether the update changes the position on furloughing shielding employees. We’ve put together this short article to clarify the position

Yesterday’s changes only relate to a change to the SSP regulations to enable SSP to be paid for periods of shielding. It was strange that the 28 March regulations had excluded this in the first place. This was likely an inadvertent omission and the latest regulations have rectified this. The default position is therefore that someone who is shielding should be paid SSP if they meet the usual eligibility criteria.

The CJRS is an entirely separate matter. The guidance to the scheme clearly states that shielding employees, if the employer chooses, can be put on furlough. As per the guidance:

“Employees who are unable to work because they are shielding in line with public health guidance (or need to stay home with someone who is shielding) can be furloughed.”

The reference in previous guidance to the fact that shielding employees could be furloughed if they could not work from home and would otherwise be redundant has been taken out of the latest version.

One could interpret this as meaning that there is no need to show a lack of work – and that is very much in keeping with the plain reading of the guidance.

On the face of it, therefore, employers can choose to furlough shielding employees.

The guidance also refers to the fact that you can furlough someone who needs to stay at home with someone who is shielding. We would advise caution on this point.

Firstly, there is a reference to that person needing to stay at home. This goes beyond wanting to be extra cautious given the household member’s vulnerability. In particular, the latest guidance published today on shielding employees specifically states:

“The rest of your household do not need to start shielding themselves, but they should do what they can to support you in shielding and to carefully follow guidance on social distancing”.

It is a balancing act for employers as a refusal to furlough when it could easily be used could be seen as a potential breach of trust and confidence whereas agreeing to furlough when it was not necessary could lead to a potential recovery of the subsidy in the future. One would hope that this would not be the case, especially given the lack of clear guidance on this point. Most of the guidance focuses on who can be furloughed, rather than when an employer should consider it appropriate to furlough, which therefore suggests there is a wide discretion here.

On a final point, some people have queried whether a letter from a GP advising an employee to shield is sufficient. At a recent press conference, the Chief Medical Officer, Professor Chris Whitty made it clear that while many of the most clinically vulnerable people had been notified directly by the NHS because they have been identified centrally from their medical records, some were being notified by GPs or other medical professionals who had expert knowledge of their conditions and were, therefore, able to identify that they are at the greatest risk of severe illness.

However, we’d advise scrutinising these letters carefully, particularly to check that this advice is based on one of the conditions specified by Public Health England. We’ve set out the shielding guidance on relevant medical conditions in the extract below.

Clinically extremely vulnerable people may include the following people. Disease severity, history or treatment levels will also affect who is in the group.

  1. Solid organ transplant recipients.
  2. People with specific cancers:
    • people with cancer who are undergoing active chemotherapy
    • people with lung cancer who are undergoing radical radiotherapy
    • people with cancers of the blood or bone marrow such as leukaemia, lymphoma or myeloma who are at any stage of treatment
    • people having immunotherapy or other continuing antibody treatments for cancer
    • people having other targeted cancer treatments which can affect the immune system, such as protein kinase inhibitors or PARP inhibitors
    • people who have had bone marrow or stem cell transplants in the last 6 months, or who are still taking immunosuppression drugs
  3. People with severe respiratory conditions including all cystic fibrosis, severe asthma and severe chronic obstructive pulmonary (COPD).
  4. People with rare diseases and inborn errors of metabolism that significantly increase the risk of infections (such as Severe combined immunodeficiency (SCID), homozygous sickle cell).
  5. People on immunosuppression therapies sufficient to significantly increase risk of infection.
  6. Women who are pregnant with significant heart disease, congenital or acquired.”

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