SSP Self-certification (and Self-Isolation Around the UK)

** Do note that guidance may change at any time and the details in this article were correct at the time of writing**

On 17 December 2021, The Statutory Sick Pay (Medical Evidence) Regulations 2021 came into force in Great Britain.? In Northern Ireland, similar Regulations came into force entitled The Statutory Sick Pay (Medical Evidence) (Modification) Regulations (Northern Ireland) 2021.

For employers and payroll professionals, the very important consequence of these pieces of secondary legislation is that an employee can self-certify their own sickness for 28 days rather than 7.? This applies to any Period of Incapacity for Work (PIW) that starts on or after 10 December 2021.

The legislation is time-limited, meaning that this applies to any absences starting on or before 26 January 2022.? The reason for this temporary relaxation is detailed in the Great British Regulation’s Explanatory Note and in response to the current Omicron wave of Covid-19 cases:

So, the important points for employers are:

• Employees can self-certify for 28 days rather than 7 and HMRC guidance has been updated
• This is for PIWs starting on or after 10 December 2021 but ceases to apply to PIWs that commence on or after 26 January 2022

Of course, the Omicron wave is expected to lead to more employees self-isolating….

For eligibility to Statutory Sick Pay (SSP) an employee has to be incapable of work under their contract of employment.? This is generally through sickness.

However, various SSP (Coronavirus Amendment) Regulations have added to the list of people that are deemed to be incapable of working.? So, eligibility extends to absences where it is not through actual sickness but also through self-isolation.

A major concern is the definition of self-isolation, given that the rules vary depending on which UK nation the person is self-isolating and the circumstances.

Here is my attempt to clarify this for employers (and individuals), always considering that this is a very moving picture.

Throughout the United Kingdom, an individual must self-isolate for 10 days if they:

• Test positive for Covid or have?Covid symptoms
• Are awaiting the results of a polymerase chain reaction (PCR) test after developing Covid symptoms
• Are an adult who has not been double vaccinated, who lives with someone who tests positive (or who has Covid symptoms)
• Are an adult who has not been double vaccinated, who has been identified as a close contact of someone who has tested positive

That is the simple part. ?However, the rules about self-isolation and contacts of a confirmed or positive case and, therefore, eligibility for SSP, depends:

In England, if an individual comes into contact with a person with Covid-19, whatever variant, there is no requirement to self-isolate if any of the following apply:?

• There are no symptoms
• The individual is double-vaccinated – meaning 14 days have passed since the final dose of a vaccine given by the NHS
• The individual is under 18 years and 6 months old
• The individual is taking part or has taken part in a Covid-19 vaccine trial
• The individual is unable to get vaccinated for medical reasons

Further, the advice is to take lateral flow tests (LFT) every day for 7 days and self-isolate if one of the tests is positive, at which point a PCR test should be taken. ?If that result is negative, there is no requirement to self-isolate though there is a requirement to self-isolate for 10 days if it is positive.?

Also, those coming into close contact should follow advice on developing Covid plus tell other close contacts.? However, there is no requirement for these close contacts to self-isolate unless they're contacted by the NHS England Test and Trace service.

So, coming into close contact with someone with Covid-19 is not an automatic reason for self-isolation in England.? If there is no requirement to self-isolate, there is no eligibility for Statutory Sick Pay.

In Scotland, there is a requirement for individuals to self-isolate for 10 days if a close contact who lives with them tests positive for any Covid-19 variant.? This is a household contact and applies even if:

• The individual is under 18
• The individual has been double-vaccinated (with the second dose more than 14 days before)
• The individual has had a negative PCR test, or
• They have tested positive within the last 90 days

Exemptions may apply for some health and social care workers.

For non-household close contacts who have tested positive for any Covid-19 variant, self-isolation can end if:

• The individual is fully vaccinated (with the second does more than 14 days before)
• The individual receives a negative PCR test result
• The individual does not have symptoms, or
• They have tested positive within the last 90 days, are fully vaccinated and do not develop any new symptoms

So, close contact in Scotland and the requirement to self-isolate is different depending on whether it is a household or non-household contact.? Again, if there is no requirement to self-isolate, there is no eligibility for Statutory Sick Pay.

In Wales, the situation is more complicated when it comes to self-isolating when in contact it seems.? The requirement to self-isolate depends on factors such as age, vaccination status, occupation and whether it is a household or non-household close contact:

• For those under 5 (and, therefore, affecting possible childcare arrangements), there is no requirement to self-isolate or take LFT / PCR tests unless they have been identified as a contact of a suspected or confirmed Omicron case
• For those aged 18 and over and not fully vaccinated, there is a requirement for the individual to self-isolate from the day they were last in contact with the person who tested positive and for the next 10 days.? This is regardless of the fact that a PCR test (on days 2 and 8) may return a negative result
• For individuals who are fully vaccinated (and those aged between 5 and 17) and have not come into contact with a confirmed or suspected Omicron variant case, there is a requirement to self-isolate for household contacts until a PCR test indicates a negative result.? However, there is no requirement to self-isolate for non-household contacts, though there is a requirement to take a PCR test (on days 2 and 8)
• For individuals who have been in close contact with someone with a confirmed or suspected Omicron variant, regardless of vaccination status, the requirement is to self-isolate from the day they were last in contact with the person and for the next 10 days. ?NHS Wales Test, Trace, Protect service may contact the individual during this time to say that they can end self-isolation, however, this will depend on age, vaccination status and the nature of the contact ?

There are special provisions for health and social care and special education provision workers.

For employers deciding on SSP eligibility for those that live in Wales, things seem much more complicated, as we bring into the picture the Covid-19 variant.? This opens up all sorts of confidentiality issues for employers.? Yet, essentially, if there is no requirement to self-isolate, there is no eligibility for Statutory Sick Pay.

In Northern Ireland, the requirement to self-isolate depends on vaccinations status, age and where the individual works.? The definition of a ‘close contact’ is the same as the other nations, though there does seem to be a better definition in NIdirect guidance:?

• In the first instance, it is worth saying that close contacts of suspected Omicron cases will be contacted by the PHA (Public Health Agency).? They must self-isolate for ten days and take a PCR test of days 2 and 8, regardless of their vaccination status or age.? For close contacts that are not Omicron:
• Individuals over 18 who are not fully vaccinated (or within 14 days since the last vaccine) are required to self-isolate for 10 days following the last contact with the positive contact.? There is still a requirement for the PCR test on days 2 and 8, however, the self-isolation period remains at 10 days regardless of the result
• Where the individual over 18 is fully vaccinated (i.e. more than 14 days since the last vaccine) or has been in an approved Covid-19 vaccine trial, there is no requirement to self-isolate.? However, if the results of the recommended LFT or PCR test show a positive result, there is a requirement to self-isolate
• There is also no requirement to self-isolate if the close contact is fully vaccinated or is up to age 18 in full-time education and has had a negative PCR test within the last 90 days
• Where the close contact is not fully vaccinated and is aged 11 to 18 in full-time education, there is a requirement to self-isolate, yet this requirement stops if a negative PCR result is obtained.? Again, this has impacts for the parents of these children who may have childcare obligations
• Where the close contact is a child in primary school, they must self-isolate but this can stop if a negative PCR result is obtained
• Contacts who are under the age of 5 do not need to self-isolate unless they develop symptoms of obtain a positive PCR result – though PCR tests are only encouraged for these children

There is separate guidance for fully vaccinated health and social care staff.

This all seems incredibly complicated for individuals and employers, ascertaining whether they have to self-isolate and, therefore, whether there is an eligibility for SSP.? Yet, again, if there is no requirement to self-isolate, there is no eligibility for Statutory Sick Pay.

Plus, there are other payments that a self-isolating employee may be entitled to outside of the payroll:

• In England, an individual may be entitled to a ￡500 Test and Trace Support Payment if told to self-isolate by NHS England’s Test and Trace.? The guidance on Gov.UK has been updated in light of the change to rules when self-isolating as a result of coming into close contact with a suspected or confirmed case of the Omicron variant
• In Scotland, an individual may be entitled to a ￡500 Self-Isolation Support Grant is they are told to self-isolate by NHS Scotland’s Test and Protect
• In Wales, an individual may be entitled to a ￡750 payment from the Self-isolation Support Scheme if they have been told to self-isolate by NHS Wales Test, Trace Protect
• In Northern Ireland, an individual may be entitled to a Discretionary Support self-isolation grant where they are diagnosed with Covid-19 or have been told to self-isolate in accordance with the latest guidance published by the Regional Agency for Public Health and Social Well-being

So, the big news is that the self-certification period has been temporarily extended from 7 days to 28.

However, it is important for employers to remember that self-isolation is a reason for SSP eligibility together with an actual diagnosis.? Yet, as you can see, whether someone is self-isolating or needs to self-isolate is an extraordinarily complicated situation for employers.?

Of course, as SSP is not recoverable and is always an employer cost, there is actually nothing to say that a payment can’t be made anyway.? However, it should not be called SSP and should not be recorded as such in payroll systems.