COVID-19: Temporary statutory sick pay rules allow employees to self-certify sickness absence for 28 days
Legal Development 20 December 2021 20 December 2021
UK & Europe
In a move designed to relieve pressure on the NHS, Statutory Sick Pay (SSP) changes in force from Friday 17 December 2021 allow employees to self-certify absence for up to 28 days. Employees can normally only self-certify absence for the first seven days.
Employees who are eligible to receive SSP are not normally required to provide their employer with medical evidence to support their sickness absence (or other incapacity for work) for the first seven days of absence. For longer periods of absence, they must obtain medical evidence from their GP (by way of a fit note).
As a temporary measure which aims to free up GP capacity to focus on the coronavirus vaccine booster programme and emergency care, employees will not be required to provide their employer with medical evidence of sickness absence for the first 28 days of absence. GPs will still be required to supply fit notes for periods of absence exceeding 28 days.
This change took effect from 17 December, but applies to spells of incapacity for work which either:
- start during the period 17 December to 26th January or
- began before 17 December but which have not lasted more than seven days on that date (and so in relation to which the requirement to provide medical evidence has not yet arisen).
The new rules apply to England, Wales and Scotland.
In summary, these changes mean that:
- those who go off sick on or after 10 December, up to and including 26 January 2022 are not required to give proof of sickness for SSP purposes until they’ve been off for 28 days or more
- those who started their sick leave before 10 December 2021 must continue to provide fit notes when they are off work for more than 7 days in a row (including non-working days), and obtain further fit notes when their existing ones expire
- the self-certification period will go back to seven days for absences beginning on or after 27 January 2022 (unless these rules are extended)
The government has updated its guidance note on SSP.
Do these changes mean that employers cannot ask for proof that the employee is off sick or self-isolating?
No, the changes only relate to SSP entitlement. An employer can still ask their employee to self-certify that they are sick or are self-isolating due to coronavirus. There is commonly a requirement contained in the contract of employment or the employer’s staff handbook that the employee must notify their employer immediately of any sickness absence and provide evidence as required by the employer’s sickness policy.
There is also currently an online service available for employees who have been advised to self-isolate because of coronavirus to obtain an online isolation note. Employees can use this service to provide their employer with evidence of the need to self-isolate, without having to contact their GP. For those who have been notified by the NHS or public health authorities that they have come into contact with someone with COVID-19, their notification is proof.
When are employees entitled to SSP if they are self- isolating in line with government advice?
Employees must be paid SSP if they cannot work because they're self-isolating under government guidance for any of the following reasons:
- they have coronavirus symptoms or have tested positive
- someone in their household has symptoms or has tested positive
- they are told to self-isolate by an NHS test and trace service
- they have been advised by their doctor to stay at home before going into hospital for surgery
To be eligible for SSP, they must be off work for at least 4 days in a row, including any of their usual non-working days.
They are entitled to be paid at least SSP for every day they are off work. This is different to the usual rules for SSP where the first 3 days are unpaid.
Employers might also offer more than SSP in the form of contractual' sick pay.
Employees are not entitled to Statutory Sick Pay (SSP) if they are self-isolating or quarantining after travel abroad and they cannot work from home. But an employer can choose to pay them sick pay – at the same rate as SSP or a higher rate – if they want to.
Note that the current rules and guidance regarding self-isolation are under constant review and have changed recently. The rules are also different across England, Scotland and Wales. For the up to date position, see the relevant guidance:
- England - NHS Test and Trace in the workplace - GOV.UK (www.gov.uk)
- Scotland - Coronavirus (COVID-19): Test and Protect - gov.scot (www.gov.scot)
- Wales - Self-isolation | GOV.WALES
Can we reclaim SSP for COVID-19 related absence?
Up until 30 September 2021, employers with less than 250 employees could reclaim any COVID-19 related SSP paid to employees for the first two weeks of absence. This scheme has ended now, and SSP can no longer be reclaimed.