As the summer becomes a distant memory, and there is a distinct chill in the air, sickness absence amongst employees is likely to become more of an issue for many businesses.
Combined with an expectation that, at least to some extent, Covid-19 might rear its ugly head again, this month we are looking at some of the issues that both Covid-19 and other ill-health can cause for employers.
Providing evidence of ill-health
When an employee is unwell, subject to specific reporting requirements that may apply, the usual approach is to permit “self-certification” of sickness absence for the first seven days (including weekends). This is on the basis that employers are generally content to take what they are told by their employees at face value for shorter absences.
After 7 days’ absence, employees are usually required to provide more robust evidence of ill-health, most commonly in the form of a “Statement of Fitness for Work”.
Prior to July this year, this required a GP to confirm the reason for the employee’s absence, meaning that, at least in principle, the genuine nature of an employee’s ill-health was less likely to be called into question.
Since 1 July 2022 however, alongside GPs, Statements of Fitness for Work can now be signed by nurses, occupational therapists, physiotherapists, and pharmacists.
The concern for businesses is that this could, in theory, make it much easier for an employee to “fake” (or exaggerate) their poor health to avoid work.
So what can an employer do about it? It is important to remember that if there is a genuine reason for not believing that an employee is actually ill (for example where an employee reports in sick, and then is seen, whether it be on social media or elsewhere, looking far from unwell!) then an employer can act on this, by way of investigating and, ultimately, considering disciplinary action.
In addition, even when presented with a Statement of Fitness for Work, if an employer does not accept the reasons given, or requires further information to determine fitness for work, one option could be to refer the employee for a specific medical report, (to an Occupational Health specialist, or by asking questions of their GP).
Whilst this will usually incur a cost, and an employee could refuse to engage (subject to any contractual obligation for them to do so), it is something that businesses can use as a useful tool to at least threaten, should there be concerns around whether an employee is actually too ill to attend for work.
Living with Covid-19
Another point of consideration for employers when assessing whether an employee who is unwell should (or should not) be attending work arises when an employee has symptoms of, or indeed has tested positive for, Covid-19.
As everyone will be aware by now, it is no longer a legal requirement for an individual to self-isolate if they have tested positive for, or have symptoms of, Covid-19. There are no free Covid-19 tests available anymore, and therefore if Covid-19 numbers increase in the coming winter months, lots of employers will be unsure about what they should be doing when faced with Covid-19 cases within their workforces.
The government’s current public health guidance recommends that employees presenting with symptoms of respiratory infections (including a continuous cough, sore throat, stuffy or runny nose, or shortness of breath) who also have a high temperature and do not feel well enough to go to work, should try to stay at home and avoid contact with others until symptoms pass.
Those who test positive for Covid-19 (even without symptoms), are also advised to try to stay at home and avoid contact with others, for at least 5 days (or 10 days if meeting those at higher risk of becoming seriously unwell due to Covid-19) after they took the test.
The difficulty for employers is that this is only guidance. Coupled with the conundrum of an employee who has Covid-19, but feels well enough to attend work (and wishes to do so), the current situation for employers is extremely confusing.
Businesses will be torn between wishing to follow the guidance to try to ensure that outbreaks of Covid-19 do not impact their workforce, and keeping as many of their staff at work as possible for operational reasons (particularly as the cold weather inevitably increases other illnesses).
Practical advice
The practical starting point is that if an employee is actually unwell, then they ought not to attend work, not just for the reasons outlined above, but also from a health and safety perspective. In such circumstances businesses should follow their ordinary sickness absence procedures, which will mean paying the employee Statutory Sick Pay (“SSP”) after three days, and (where applicable) any additional enhanced company sick pay.
For employees who test positive for Covid-19, but are not unwell (or whose symptoms are not serious enough to mean they cannot work), businesses should still consider making arrangements for working from home for the 5/10 day period, where possible.
If an employee with Covid-19 is unable to work from home, but is ready and willing to work, given that it is only guidance that they “try” to stay at home, arguably if an employer wishes to ask them to stay at home, they ought to be paid for this absence (otherwise the employer runs the risk that this is a breach of contract that could give rise to employment tribunal claims).
Whilst in the current economic crisis this is a cost that many businesses can ill-afford, business owners will need to weigh this up against whether they are comfortable with employees who are either symptomatic, or who actually have Covid-19, attending the workplace (and the associated risk of the spread of infection to both colleagues and customers).
Whatever an employer decides, there are lots of practical ways to keep sickness absence to a minimum in the coming months. The government advice includes encouraging Covid-19 vaccination amongst staff, and keeping the workplace well ventilated and clean. Businesses could also consider offering a flu-vaccination scheme, and looking at other ways to encourage health and wellbeing amongst staff.
