It is all hands to the pump to get all adults in the UK a Covid-19 booster vaccine by the end of January. In a bid to get as many as possible vaccinated, the Government has temporarily extended the period of time that that employees can be absent from work on sick leave work without being required to provide medical evidence from their GP to their employer.

Under the current rules an employee who is unwell and who cannot attend work will need to show their employer a GP-signed “Fit Note” after 7 days in order to receive statutory sick pay. The Statutory Sick Pay (Medical Evidence) Regulations 2021 have temporarily extended this to 28 days during which time the Employee will have to self-certify that they are too unwell to work. The emergency legislation was put before Parliament last week and amends regulation 2(2) of the Statutory Sick Pay (Medical Evidence) Regulations 1985. The change applies to any sickness period which started between 10 December to 26 January 2022.

Many employment contracts include a clause entitling the employer to request medical evidence within the first 7 days of an employee’s sickness absence. For the purposes of paying the employee any entitlement to Statutory Sick Pay of £96.35 per week, an employer cannot require an employee provide such evidence within the 28 day self-certification period for periods of sickness between 10 December and 26 January 2022.

This being said, many employers operate a contractual sick pay scheme that guarantees employees will receive their full (or part of it) salary when they are absent during illness. There is nothing in the legalisation to stop an employer from requesting a fit note within the 28 day self-certification period if it is to satisfy any evidence requirement to be eligible for such a contractual entitlement. GPs may require payment for fit notes produced for this purpose as the note has become a private medical certificate and is not to be used for the purpose of proving eligibility for statutory sick pay. Employers will need to analyse their policies as the wording of these schemes can be linked explicitly or impliedly to statutory sick pay.

Guidance for employers:

  • Check the wording of any policies that deal with employee sick leave. If the employer decides to amend the approach to sick leave and fit note requests in line with the legislative change the policy should be applied consistently to all employees. The change should take effect for as long as the legislation is applies.
  • If an employer does not have a policy to this effect, one should be drafted and circulated to all employees. Having an effective policy in place will help employers to deal with absences consistently and effectively as well as putting employees on notice as to the standards of attendance and reporting that the employer expects from them.
  • Check any Sick Pay Scheme that the Employer operates as to whether other evidence can be submitted (for example an isolation note from the NHS or a report from an occupational therapist).
  • An employee will still need to be procedurally-compliant with the Employer’s policies on notification for any entitlement to contractual sick pay.
  • Accurate records should be kept detailing when an employee has commenced leave.
  • Employers should continue to conduct welfare meetings with employees over the 28-day self-certification period.

Should you have any queries about the amendment to the Regulations, policies on absence and sick leave, or dismissal during sick leave please contact Linky Trott or any member of the Employment Team.

Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.

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