Phase 3 of the Omicron Plan is here along with the anticipated surge in our COVID-19 case numbers.
There are simpler isolation rules under Phase 3 with only confirmed cases and their household contacts now required to isolate. Financial support schemes continue to be available, however the rules about paying employees while they isolate are not always clear. Here we unpick the rules about paying salary and wages during Phase 3.
Employees who are actually sick with COVID-19 or caring for a dependent who is sick, are entitled to use their sick leave in the normal way.
The situation for employees who are not sick but still need to isolate because of COVID-19, or for those who may be sick but do not have any sick leave to use, is less straightforward.
The general rule is that employees who are ready, willing and able to work must be paid. In some employment cases last year, the courts found that employers must continue paying their employees because they were available to do their work despite the lockdown.
It is different however if employers are operating normally and able to provide work, but employees cannot work because they are isolating. In that scenario it is arguable that employees are not entitled to be paid because they are not able to work. There is some risk with this approach however because there is no clear guidance on this point from the courts yet. Employers may also need to direct employees to stay at home to comply with their health and safety duties. This could blur the line between employers being able to provide work and employees being able to carry out work.
Employers facing this situation must act fairly and reasonably. This includes consulting with employees before making any decisions on their pay status, trying to come to an agreement first about what to do, and considering reasonable alternatives as part of that. Any employees who can work from home should be facilitated in doing so. For those who can’t, options like using annual leave instead should be considered.
There are several financial support schemes available to employers. They are:
· The Short term absence payment
· The Close Contact Exemption scheme
· The COVID-19 support payment
Before applying for any of the above financial schemes, employers should ensure that they are comfortable with the additional obligations the schemes impose on them. For example, employers who access the Leave Support Scheme must use their best endeavours to pay employees at least 80% of their ordinary wages and salary. Whether to apply for financial support and what financial support to apply for will depend on the circumstances of each individual business.
There are several other initiatives aimed at easing the burden on businesses. For example, employees who are household close contacts can still come to work as long as they are not customer facing and can maintain a “bubble of one” while at work and to and from work. Changes are also being made to the Small Business Cashflow Loans Scheme to enable businesses to access increased funding to supplement existing loans. Flexibility on tax payment dates to assist with cash flow has also been announced.
The Corcoran French employment team is here as always to help you navigate through Phase 3.