As the coronavirus situation escalates, and the government’s response intensifies, there have been a number of key legal developments affecting employers and their workforces. We summarise some of these new developments below, as we continue to support employers during these unprecedented times. We report on the impact for employers on the closure of schools, the new employee right to emergency volunteering leave and the newly launched online isolation notes.
Schools and nurseries close
The news that most parents dreaded became a reality today, when schools and nurseries closed to all but the most vulnerable children or those of key workers. From Monday, the impact will be felt by thousands of working parents who will now have to care for their children during the working day.
Unpaid emergency dependants’ leave
Employees have a statutory right to take a “reasonable” amount of time off, without pay, in order to take action which is necessary because of the unexpected disruption or termination of arrangements for the care of a dependant child. The right to this leave is limited and is not intended to extend beyond the reasonable amount of time necessary to enable an employee to deal with the immediate crisis. The employee is entitled to time off to put care arrangements in place, but they are not entitled to time off to provide the care themselves longer term. Such leave is generally used to make arrangements for alternative childcare, such as visiting nurseries and facilitating settling-in sessions.
The challenge with the current situation is that many parents do not have the option of alternative childcare. All childcare and educational establishments are closing other than for the most vulnerable children or those of key workers. In a climate where we are all being advised to limit social contact, arranging for friends or other family members to care for our children is also not an option available to most parents. It would suggest that this type of leave was not designed for the situation in which most working parents now find themselves.
Unpaid parental leave
Employees who have at least one year’s service and meet other qualifying requirements, are entitled to take up to four weeks’ unpaid parental leave per child per year (i.e. a father of three children under the age of 18 is entitled to take up to 12 weeks’ unpaid leave per year). The statutory purpose of this leave should be to care for the child. This makes parental leave far more suited to the current situation. However, as it is currently unknown for how long nurseries and schools may be closed, parents may soon exhaust their entitlement to parental leave. It is also likely to be the case that, for many parents, taking lengthy periods of unpaid leave is not economically viable.
Currently, the only form of paid leave available to employees who are unable to work because of the schools and nurseries closing is annual leave. Such leave is limited to 5.6 weeks’ statutory leave for full-time employees unless the employee is entitled to additional contractual leave. An employer is able to refuse a request to take annual leave, providing the employee is able to take their statutory leave entitlement during the holiday year. However, to refuse a request to take annual leave in these circumstances is likely to be considered unreasonable in all but the fewest cases.
Employer’s response to the schools’ closure
It may be the case that employees with older children and teenagers are able to continue working from home, largely unaffected. If employees are able to continue performing their roles from home, they are entitled to receive full pay.
It may, however, be the case that the age of the employee’s children mean that they require such care and attention that the employee is unable to work normal hours. Where the employee is able to work reduced hours (perhaps by sharing responsibility for the care of the children with a partner), employers may consider agreeing to a reduction in hours and associated pay. Employers may also consider requests to vary the employee’s hours, either to accommodate shared childcare arrangements, or to enable the employee to work when, for example, the child is napping or asleep.
Clearly, given the limited notice of school and nursery closures, there has been insufficient time for employers to deal with any flexible working requests in accordance with normal procedure. Employers should, however, seek to deal with such requests in a consistent manner to avoid claims of discrimination or unfairness. Employers should also be mindful that the impact of the coronavirus pandemic is fast moving and the situation could change quite significantly in coming days and weeks. Accordingly, any requests for flexible working should be granted on a temporary, ad hoc basis, to enable employers to adapt to developments as they arise.
Employers should, where possible, seek to accommodate flexible working requests that enable employees to continue working and receiving an income. In reality, those employees who are faced with the prospect of unpaid leave may, instead, claim to fall within one of the categories of employees who are now entitled to statutory sick pay. Many employers are likely to take the view that they would rather benefit from an employee’s reduced productivity rather than lose that employee on repeated cycles of self-isolation for which the employer would be liable to pay SSP. Currently, only the first two weeks of SSP are reimbursed by HMRC and only reimbursed to employers with fewer than 250 employees as at 28 February 2020.
To date, the government has not signalled any intention of offering financial support to working parents who find themselves forced to take unpaid leave to care for their children. It is hoped that the government will seek to address this together with other measures to support employees whose financial situation is impacted by the measures taken to respond to the coronavirus threat.
New emergency volunteering leave
The COVID-19 Bill put before parliament on 19 March 2020 sets out a new form of statutory unpaid leave for employees and workers who have been approved by the relevant authority to act as an emergency volunteer in health or social care. Employees are required to give their employer a minimum of three days’ notice before taking leave in blocks of two, three or four consecutive weeks in any 16 week period. Any employee who takes emergency volunteering leave is protected from suffering a detriment and is entitled to continue benefitting from their terms and conditions of employment other than those relating to pay. Such employees also have a statutory right to return to the job in which they were employed before the absence. Employers should factor this into any workforce planning.
A UK-wide compensation fund will be established to compensate for loss of earnings and expenses incurred at a flat rate for those who volunteer. This new form of leave may be an option for employees who find themselves underemployed during this crisis.
Online isolation notes launched - providing proof of coronavirus absence from work
The Department of Health and Social Care has announced today that employees unable to work for more than seven days because of coronavirus can obtain an isolation note through a new online service. We understand that these new isolation notes will provide employees with evidence for their employers that they have been advised to self-isolate due to coronavirus, either because they have symptoms or they live with someone who has symptoms, and so cannot work.
For the first seven days off work, employees can self-certify so they don’t need any evidence for their employer. After that, employers may ask for evidence of sickness absence. Where this is related to having symptoms of coronavirus or living with someone who has symptoms, the isolation note can be used to provide evidence of the advice to self-isolate.
The notes can be accessed through the NHS website and NHS 111 online (although they are not yet live as of this afternoon (20 March)). After answering a few questions, an isolation note will be emailed to the user. The service can also be used to generate an isolation note on behalf of someone else.
Employers should note that the Public Health England Guidance for Employers and Businesses strongly suggests that employers use their discretion around the need for medical evidence for a period of absence where an employee is advised to stay at home either as they are unwell themselves, or live with someone who is, in accordance with the public health advice issued by the government. Therefore, employers may wish not to insist on an online isolation note for absent employees.