COVID-19: NHS Staff Council joint guidance

Joint guidance following the withdrawal of DHSC’s terms and conditions COVID-19 guidance.
NHS workers coming through a barrier
NHS Staff Council

 

Introduction

On 21 February, the government set out their plans for living with COVID-19 which saw the withdrawal of legislation restricting public freedoms. 

The Department of Health and Social Care (DHSC) wrote to the joint chairs of the NHS Staff Council on 13 April 2022 setting out their intention to withdraw the staff terms and conditions section of the COVID-19 workforce guidance (the guidance).

The Staff Council co-chairs received confirmation from the DHSC on 29 June 2022 outlining the timeline to withdraw the guidance. The DHSC will assess the equality impact in line with requirements as set out in the Public Sector Equality Duty. 

The withdrawal of the guidance will see a return to normal contractual arrangements and includes the removal of:
a.    COVID-19 sick pay (full pay) for COVID-19 related sickness absences; and
b.    COVID-19 special leave (full pay) for self-isolation

All remaining temporary enhancements within the guidance will cease with effect from 7 July 2022 

The arrangements for the withdrawal of COVID-19 sick pay and COVID-19 special leave will be phased over a period of two months, commencing 7 July 2022 with activity required at set points as described below:

Phase  Effective from  Action
1 7 July 2022

The staff terms and conditions section of the COVID-19 workforce guidance will be withdrawn in its entirety. This includes:
•    access to full COVID-19 sick pay for new episodes of COVID-19 sickness; and
•    access to COVID-19 special leave for the purposes of self-isolation.

From this date the guidance will be archived on NHS Employers website. 

2 7 July 2022

Employing organisations must communicate to their entire workforce that the guidance is being withdrawn. In implementing this transition employers should pay due regard to the implication for staff with protected characteristics, including any mitigating measures. 

In addition, employers must make all reasonable attempts to meet with staff who are absent on COVID-19 sick pay on an individual basis to explain how the changes affect them. This should include detail on when the formal transition period for COVID-19 sick pay begins and ends and what support is available.

From this date staff who are clinically well but who need to self-isolate in line with the UKHSA guidance will be supported to work from home in the first instance where possible. Where this is not possible, they will be on ‘authorised absence’ and receive full pay as if at work. This will not be treated as sickness absence.  
All employers should have made contact with affected staff by 3 August 2022.

Staff should have access to support from their trade union representative during this process as required

3 4 August 2022 
For staff still on COVID-19 sick pay, the formal notice period for staff reverting to their normal contractual sick pay arrangements will begin. 

This period will run for four weeks, 4 August to 31 August 2022 inclusive. Staff will receive written confirmation of notice and any arrangements agreed during their individual meeting during this period.
 
4 1 September 2022 

Staff who were in receipt of COVID-19 sick pay as a result of being unwell prior to 7 July and continue to be unwell, will revert to their normal contractual sick pay entitlements unless they have already returned to work. 

All sickness periods that have been treated as COVID-19 sickness and have not been counted towards normal sickness absence (in relation to pay and/or sickness absence triggers) until 1 September, should retain that status. For further information refer to the scenario in Appendix 1 below. 

From this date, all staff regardless of their reason for sickness absence will be paid in line with their contractual sick pay arrangements.

Individual conversations

Employers should work with local trade union representatives to plan the approach to scheduling individual conversations. Conversations with those off for the longest periods should be prioritised in order to ensure that the full four-week formal notice can be given. For example, those staff who have been absent for longest may require the most support while some staff are likely to return to work before the end of the initial four-week period on 3 August.

Conversations need to be handled sensitively taking account of the individual’s situation and state of health, ensuring that staff have access to support from their trade union where needed.

Sickness arrangements

From 7 July 2022, new episodes of COVID-19 sickness absence will be paid in line with the individual’s normal contractual terms and conditions of service. Where staff are unwell with COVID-19, their sickness absence should be recorded using the occupational sick pay scheme in ESR, ensuring the COVID-19 related reason is selected. For further detail please refer to ESR’s user notice (UN3179).

From 7 July 2022, staff on existing COVID-19 sickness absence, regardless of length, will be contacted by their employer to have individual conversations and from 4 August will be provided with four weeks’ notice of return to their normal contractual sick pay arrangements, as set out in their terms and conditions of service. 

In line with DHSC’s policy position, all sickness periods that have been treated as COVID-19 sickness and have not been counted towards normal sickness absence (in relation to pay and/or sickness absence triggers) until 1 September 2022, should retain that status. 

The guidance previously issued by the NHS Staff Council on the management of long term COVID-19 sickness management absences, alongside local sickness management policies, should be used when supporting staff during a period of sickness absence. 

Support available to staff during a period of sickness absence includes consideration of injury benefits where the circumstances support this, undertaking updated referrals to Occupational Health, consideration of reasonable adjustments (including for disability), signposting to flexible working rights, and any adjustments that may assist staff return to the work. 

The recording of sickness absence in line with this approach should be made in line with ESRs user notice (UN3179).

Self-isolation for infection control purposes 

From 7 July 2022, employing organisations should follow infection control guidelines set out by the UK Health Protection Agency (UKHSA), for all healthcare staff. This includes staff who test positive for COVID-19 and those who are required to stay away from their workplace.

On 24 August 2022, an announcement was given by the Department of Health and Social Care that routine asymptomatic testing will be paused across the health and social care setting from 31 August in light of falling Covid-19 case numbers. The following guidance may be revised once the implications of this decision are fully understood.

To manage infection control, where an employer requires a member of staff who is either, (a) asymptomatic (see above regarding changes to asymptomatic testing) or (b) symptomatic but clinically well enough to work, to stay away from their workplace, the expectation is that staff should receive the pay they would receive if they were at work. This is regardless of whether staff can work from home, including on altered duties or not, during this period. This should be treated as authorised absence, not sickness absence.

Where possible, employing organisations should facilitate staff members to work from home where they have tested positive for COVID-19 or where, in line with the UKHSA guidance, their risk assessment deems it is not suitable for them to be physically present at work. In such circumstances it may be appropriate for employers to consider reallocating duties for a staff member to facilitate home working.

Supporting staff with COVID-19-related absence

Guidance previously issued by the NHS Staff Council which provides detail on the existing flexibilities within the NHS TCS may be useful where employing organisations have staff members who are unable to return to work as a result of delays in being able to access NHS treatment or surgery.

Useful links:

•    NHS Staff Council guidance on the management of long-term COVID-19 sickness absence (first issued 1 July 2021, updated 7 July 2022)
•    NHS Staff Council FAQs on COVID-19 sickness absence management (first issued 3 September 2020, updated 7 July 2022)
•    NHS England guidelines on supporting staff with long COVID-19

The COVID-19 temporary terms and conditions guidance has been archived and can be accessed for information purposes only on the NHS Employers website.

Bank, agency and staff working through NHS commissioned services

The policy steer provided by the DHSC will see a return to business as usual terms and conditions, following the timescales set out above. This will apply to bank and agency staff and those staff working through NHS commissioned services.

Any temporary non-contractual enhancements provided for by the guidance will be withdrawn for bank, agency and NHS commissioned services staff on 7 July 2022 or, in the case of sickness, 1 September 2022 following a period of transition.
 

Appendix 1

FAQs on the management of COVID-19 sickness from 7 July 2022

 

From 7 July 2022 what pay are staff entitled to if they become unwell and are off sick with COVID-19? How should this be recorded?

Where a member of staff is absent with an episode of COVID-19 sickness it will be paid in line with their normal contractual terms and conditions.

For staff employed in England under the NHS terms and conditions of service, Section 14 (England) arrangements apply. In some cases, Section 22 provisions for injury allowance may be relevant.

For medical staff, reference would need to be made to the appropriate terms and conditions. However, these terms already provide for full pay when off sick.

The recording of sickness absence in line with this approach should be made in line with ESRs user notice (UN3179).

From 7 July 2022 what pay are staff entitled to if they are already unwell and off sick with COVID-19? How should this be recorded?

Staff who are already absent with an episode of COVID-19 sickness absence on 7 July 2022 will continue to receive COVID-19 Sick Pay whilst they remain absent up to and including 31 August 2022. From 1 September 2022, any staff who remain absent will revert to their normal contractual sick pay arrangements.

Employers should make all reasonable attempts to schedule and complete individual conversations with all affected staff by 3 August 2022 in order to explain the changes and transition arrangements.

As part of the transition, the following steps will need to be taken:

  1. Between the period 7 July and 3 August inclusive, employing organisations will need to make all reasonable attempts to meet with all affected staff to inform them of the withdrawal of the COVID-19 workforce guidance, the process for transitioning back to their contractual sick pay arrangements and to discuss any ongoing support needs. In making arrangements for these individual meetings, employers will need to take account of the individual’s situation and state of health and ensure that staff have access to support from their trade union where needed.
  2. Individuals should be written to detailing how any ongoing COVID-19 sickness absence will be handled, what their current contractual entitlements are and be provided with four weeks formal notice effective from 4 August 2022.
  3. On 1 September 2022 all staff who remain absent from work as a result of a COVID-19 sickness will need to have their COVID-19 Sick Pay ended. Sick pay for COVID-19 absences from this date will be based on their normal contractual terms and conditions.

All sickness periods that have been treated as COVID-19 sickness and have not been counted towards normal sickness absence (in relation to pay and/or sickness absence triggers) until 1 September, should retain that status. For clarity on how this is implemented in practice, please refer to the scenario below.

How does the withdrawal of the DHSC guidance impact upon bank and agency workers and those employed by NHS commissioned services?

Staff employed in this capacity will need to seek the advice of their employing organisation to understand how the withdrawal of DHSC’s temporary staff terms and conditions guidance will impact them. This will include advice on sick pay arrangements and pay for those who are required to remain away from the workplace in line with UKHSA guidance. The NHS Staff Council has requested that NHS England/Improvement provide clarity on how contracting Trusts approach this issue.

 

COVID-19 sickness management scenario

Sam became ill with Covid on 12 August 2021 and has been off sick with Long Covid since then.

As a result of the DHSC’s policy decision to end the COVID-19 sick pay provision, her line manager will meet with her before 3 August 2022 to explain what is happening and to explore any support she needs. From 4 August 2022, Sam will receive formal notice about her COVID-19 sick pay. If on 1 September 2022 Sam is still unwell enough to return to work, she will start on what is effectively day one of a new episode of sickness under Handbook terms and conditions. 

Sam has eight years’ service so, as her COVID-19 sick pay is disregarded, her sick pay entitlement effective from 1 September 2022 is six months’ full pay and six months half pay. The management of Sam’s sickness absence will be in line with previously issued Staff Council guidance on the management of long term COVID-19 sickness absence and in accordance with the DHSC temporary provisions, 12 August 2021 to 31 August 2022 will have been disregarded for the purpose of sickness absence triggers. 


COVID-19 infection control FAQs

What happens if staff are required to stay away from the workplace in line with infection control and public health advice?

Substantive staff who are clinically well but have a positive COVID-19 test or symptoms of a respiratory infection which require them to stay away from the workplace in line with UKHSA guidance should be given work they can complete remotely. Where this is not possible, they should receive confirmation that the time they spend away from work will be recorded as authorised absence (not sickness absence) and they will receive their full pay.

This should be recorded in line with infection control procedures specifying that it is COVID-19 to enable monitoring.