Thorny legal issue of sick pay for workers who 'self-isolate' from coronavirus

The Covid-19 virus outbreak presents employers and employees with the thorny issue of sick leave, but there are conflicting views over who should pay.

David McCarroll, partner at law firm Ronan Daly Jermyn said he has already had cases where employees have opted to "self isolate" without securing permission from their employer.

They may have family members who might have been exposed and fear they have the virus.

"If every worker self regulates, this will give rise to difficulties," he said. The concern is that if the employer gives way and continues to pay the person who is on leave, a precedent will be set leading to trouble down the line if others choose to self-isolate. There is no statutory obligation on employers to pay staff absent on sick leave.

Mr McCarroll said, however, that employers do need to "act in a measured fashion in line with advice from public health officials".

He warns firms against shutting any business without first taking into account advice from public health officials.

Employer representatives have appeared to suggest that paid leave in such circumstances could be treated as being part of an employee’s holiday entitlement.

Employment law expert Ciaran O’’Mara said, however, decisions of the European Court of Justice make it clear that annual leave entitlements cannot be reduced in this way.

There is a basic health and safety principle – the obligation to provide employees with a safe work environment

He added that employers cannot contract out of health and safety law.

Mr O’’ Mara said: "If someone is sent home, they cannot be taken off the payroll the next day. What they would be getting, essentially, is safety leave."

Ibec is seeking form the Government "a special emergency social welfare payment" which would be "at the level of Job Seekers Benefit, for a two-week period from the first day of employment stoppage, waiving the qualifying period".

The crisis also brings the issue of the so-called gig economy into sharp focus. Gig workers faced with no income may seek to argue that they are employees even though they may be described as self- employed.

Useful information
• The HSE have developed an information pack on how to protect yourself and others from coronavirus. Read it here
• Anyone with symptoms of coronavirus who has been in close contact with a confirmed case in the last 14 days should isolate themselves from other people - this means going into a different, well-ventilated room alone, with a phone; phone their GP, or emergency department - if this is not possible, phone 112 or 999 and in a medical emergency (if you have severe symptoms) phone 112 or 999