The government’s decision to extend the time period that employees can self-certify sick from seven days to 28 days has left some employers seeking guidance over how to handle employees who take long-term sick leave this winter.
The measure was introduced as part of the drive to relieve pressure on GPs delivering the Covid-19 booster rollout.
A spokesperson for the Department for Work and Pensions said: “For any sickness absences which began on or after 10 December 2021, up to and including 26 January 2022, GPs will not need to provide employees with medical evidence of sickness, such as a fit note, for the first 28 days of absence.”
So does the suspension of the seven-day self-certification rule mean employees – including those with contractual sick leave – can take a month off sick with no doctor’s note?
Employment law firm GQ|Littler says that this may in practice end up being the case, because the alternatives are too costly and burdensome to be worthwhile for companies to adopt over such a short timeframe.
In practice, says Caroline Baker, partner at GQ|Littler, employers are likely to be left with a choice of paying for a fit note from a private medical provider or paying company sick pay without a doctor’s note.
Burden on the employee
While the employment contract may put the burden on the employee to provide the fit note (and therefore cover the costs of a private doctor’s visit) to be entitled to company sick pay, employers may face complaints from employees should they decide to pay just statutory sick pay for any absences over the coming weeks in the absence of a fit note from the employee.
Fit note requirements
Baker add says: “These changes are in practice going to force many employers to pay full company sick pay for weeks at a time with no proof that the employee has been unable to work.”
“These changes put employers in a very awkward situation when dealing with absent staff in the coming weeks. Given the Omicron variant and other seasonal illnesses, this will likely apply to a large number of staff.”
Companies are likely to respond, says Baker, by simply deciding to pay company sick pay without fit notes for the period for which the 28-day extension applies.
She adds: “Employers are unlikely in most cases to consider it worthwhile to put in place a system for getting doctors notes from a private provider for what is a very short period.”
Companies that require some employees to acquire a sick note and not others must be careful to avoid discrimination, warns Baker.
Vicki Ellis, senior HR consultant at Fitzgerald HR, notes that employees will also not need to supply a fit note retrospectively, and says: “While the intention behind this is to take pressure off of GPs, the announcement is likely to cause concern for many employers who may worry that some employees could take advantage of the amended regulations.
“If employers are communicating this change to employees, then it is important to clarify that it is a temporary measure and that after 26 January 2022, they will revert back to the usual reporting requirements. It is also recommended that managers keep in touch with their employees as per their usual absence policies and conduct return to work interviews upon their return from absence.”
However, she says, although employers may be concerned that this temporary change could lead to increased absences over the Christmas period, “statutory sick pay is currently paid at the rate of £96.35 per week and therefore, many employees are unlikely to be able to afford to take time off unless they are genuinely sick”.
Contractual sick pay quandary
Ellis, like Baker, highlights that some employers may also be worried about where this leaves them in relation to contractual sick pay. Technically, she says, the change to the regulations doesn’t impact contractual sick pay so if employees were previously required to submit fit notes to be eligible for contractual sick pay, they could still be required to do so.
But this may be practically impossible given the pressures on NHS services.
Recognising this, Ellis advises that employers should act reasonably towards employees who may not be able to obtain a medical certificate during this interim period, even if they have tried. “They may wish to take a more relaxed approach for example by accepting a self-certification form,” she adds.