The Coronavirus Act has received Royal Assent and has come into force. The Act sets out proposed emergency legislative measures to address the Coronavirus disease (Covid-19) outbreak.
The legislation will be time-limited for two years, however, it will neither be necessary nor appropriate for all of the measures come into force immediately. Instead, many of the measures in this Act can be commenced from area to area and time to time, so as to ensure that the need to protect the public’s health can be aligned with the need to safeguard individuals’ rights. These measures can subsequently be suspended and then later reactivated, if circumstances permit, over the lifetime of the Act.
The lifetime of the Act can itself be ended early, if the best available scientific evidence supports a policy decision that these powers are no longer needed. It is also possible to extend the lifetime of the Act for a further temporary period, again if it is prudent to do so.
The two key measures impacting directly on employment are set out below.
Sections 8 and 9, together with Schedule 7, introduce a new form of unpaid statutory leave, for emergency volunteers and powers to establish a compensation scheme to compensate for some loss of earnings and expenses incurred by volunteers.
These measures are designed to enable relevant appropriate authorities (local authorities and relevant health and social care bodies) to maximise the pool of volunteers that they can draw on to fill capacity gaps by addressing two primary deterrents to participation: risk to employment and employment rights, and loss of income.
Volunteers and leave
A person is an “emergency volunteer” if an appropriate authority (set out in Schedule 7 clause 4) certifies that: (a) the person has been approved by the authority as an emergency volunteer in health or social care; and, (b) has acted as an emergency volunteer in health or social care for a period for which emergency volunteering leave (EVL) could have been taken.
A person acting as an emergency volunteer will be entitled to receive compensation payments from public funds made available by Parliament for loss of earnings but only if the person has suffered a loss of earnings.
The entitlement to EVL does not apply to a person who is employed by an undertaking which has a staff headcount of less than 10 (this and other exceptions are set out in Schedule 7 clause 3, e.g. employment in the police service). Where the entitlement does apply:
Emergency volunteer rights
The associated rights when taking EVL are as follows:
Under Schedule 7 Part 5, where a worker gives notice to take EVL along with the necessary certificate to the employer, the employer must as soon as reasonably practicable provide copies of them to the organisation to whom the worker is being supplied, if the employer is the agent, or to the agent if the organisation to whom the worker is being supplied is the employer.
Sections 39 and 40 allow for amendments to the current Statutory Sick Pay system as it “does not provide the flexibility required for the response to managing and mitigating the effects of a Covid-19 pandemic”.
Recovery of SSP payments for certain employers
Under Section 39, the Secretary of State is given the power to make regulations regarding the recovery from HMRC of additional payments of SSP by certain employers for absences related to Covid-19. This is because the ability to recover SSP is important so that the relevant employers are supported in a period when their payments of SSP are likely to escalate. It is also necessary to ensure that employees are incentivised not to attend work when advised not to do so for reasons of health. Under Section 39 (7) the regulations made by the Secretary of State may have retrospective effect in relation to a day of incapacity for work that falls on or after 13 March 2020. Note that it was previously indicated in the Budget Report that recovery of SSP would only apply to employers with fewer than 250 employees and would be limited to two weeks of SSP payment, but this is not stated in the Act, so the regulations are awaited to be able to understand the full extent of the scheme.
Temporary suspension of waiting days for SSP
Ordinarily, statutory sick pay is not payable for the first three days of sickness. These are referred to as “waiting days”. As this may discourage people from taking sick days in order to prevent the spread of covid-19, Section 40 allows for the Secretary of State to make regulations to temporarily suspend the waiting days rule for those employees who are absent from work due to covid-19, meaning that SSP is payable from day one. Under Section 40(4) the regulations made by the Secretary of State may have retrospective effect in relation to a day of incapacity for work that falls on or after 13 March 2020.
Should you have any further questions or require any assistance with your employment arrangements during this difficult period, please do not hesitate to contact either one of our Co-Heads of the Employment team, Partners Tamara Ludlow and Ewan Keen.
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