FAQs regarding Furlough and working in national lockdown.

What are the rules regarding a pregnant employee?

Employers have additional duties to protect the health and safety of new and expectant mothers in the workplace. Specific guidance has been produced relating to expectant mothers during the pandemic.

For women less than 28 weeks pregnant and with no underlying health conditions, the recommendation is that a risk assessment is taken and these risks mitigated, or suitable alternatives arranged such as working from home or suspended on normal pay.

Pregnant women over 28 weeks, or with specific underlying health conditions, are to be treated alike to clinically extremely vulnerable people and follow the national guidance for this group. They should therefore be currently shielding under lockdown, and are eligible for furlough.

Does an employer have to show economic downturn to furlough someone for health, caring or pregnancy reasons?

Employees being furloughed for health or pregnancy reasons, can be furloughed at the employer’s discretion and does not need to be facing economic downturn or closure to be eligible.

It is likely that this too applies to employees being furloughed for caring reasons. The Prime Minister said that if people do not have access to childcare, this is an ‘obvious barrier to their ability to go back to work’, which seems to support this intention. However, as this has not yet been explicitly stated, care should be taken and evidence gathered of an employee’s inability to work.

Can an employer require an employee to take annual leave?

An employer may instruct an employee to take annual leave, provided that they are given the required level of notice and assuming that there are no other reasons that they are unable to enjoy rest and relaxation. It may be that the current national lockdown would prevent the employee’s enjoyment of their annual leave; employers should therefore give careful consideration to this before making the instruction.

Can an employer require an employee to take unpaid leave?

If furlough is not available to employers, they may need to request that employees take unpaid leave. To do this the employee’s consent is required, unless the employment contract contains a clause allowing for the employer to place employees on unpaid leave. It is recommend that unpaid leave be considered at a minimum before any disciplinary action be taken.

An employee does not want to come into work because they live with someone who is shielding, is that allowed?

The shielding guidance expressly states that it does not apply to those who live in the same household as a clinically extremely vulnerable person, and hence they are not eligible for furlough unless one of the other categories of eligibility applies.

The most suitable option here would therefore be for the employee to work from home. However, if this option is not possible, the employer should consider: current public health advice; and whether it would be discriminatory to take disciplinary action or withhold pay. It is recommended that employers react sensitively to genuine concerns of close relatives in a vulnerable category, and, in many cases, allow a period of unpaid leave without any disciplinary repercussions as a minimum.

An employee is vulnerable but not clinically extremely vulnerable, should they come into work?

If an employee is clinically vulnerable, the current government guidance does not distinguish them from the rules for all other employees, except to say to take ‘extra care’. So they are to stay home, unless they have a reasonable excuse. An employer however has a duty of care for their employees, and may need to consider extra steps to protect the employee and to avoid a claim of negligence. The employer should do a separate risk assessment for this kind of employee to assess the best course of action.

They should work flexibly with a clinically vulnerable employee to arrange the safest working practice for them, which may include consideration of the options outlined above, such as: work from home, switching roles to make this possible to enable home working; furlough; or if none of these options will work, discussing with them the possibility of taking unpaid leave.

A clinically extremely vulnerable employee wants to return to work, can an employer make them stay home?

Clinically extremely vulnerable people have been instructed by the government to shield under the national lockdown rules. If this employee is already under the furlough scheme, they can be required to keep to this agreement until the agreement comes to an end.

If however, they are not furloughed and wish to return to work against government advice, the employer should consider alternative arrangements. If possible they should arrange for the employee to work from home. If this is not a possibility, the employer should treat this as they would if an employee sought to return to work whilst still signed off by a doctor. If there is not evidence that an employee is fit to return to work, or that despite evidence the employer still has reasonable concerns, the employer will not be obliged to allow their return to work. The employer must consider their duty of care towards their employee, but also any contractual duties to provide work.

The most prudent action in this situation would be to discuss options with the employee and be flexible and considerate of their specific circumstances. Remember, many clinically extremely vulnerable people may also be disabled, and therefore have a right to reasonable adjustments to be made, as well as protection against discrimination.

An employee is afraid of using public transport

If employees are worried about traveling on public transport, once again the main advice is to have them work from home if possible. Where this is not possible, the government have issued advice on safe travel on public transport. The advice is to avoid peak travel times where possible, walk if they can, and maintain social distancing guidelines. An employer should discuss and consider any requests for flexible working times to allow for safer travelling.

Employers have a duty of care towards their employees, and a duty to provide a safe place of work. Although these duties do not extend to the commute to work, legal risks related to this may arise if the employee considers their commute to pose a serious and immediate danger to their life. This will depend on the specific circumstances of the case, and any further questions on this topic should be directed to our employment law department. 

An employee is suffering from anxiety because of covid-19

An employer owes a duty of care to their employee in regards to an employee’s mental health wellbeing as well as their physical. If the employee is suffering from anxiety the employer should be sympathetic and work with the employee to resolve the problem and protect their mental wellbeing. This may mean allowing them to work from home, furloughing them if applicable, or allow holiday or unpaid leave.

The employee may also be entitled to SSP, if their anxiety stops them from working, or it may amount to a disability under the Equality Act. Medical advice should be sought on this issue, and guidance taken on necessary reasonable adjustments. Employers should act with care and caution in these circumstances, fore mostly to protect their employees, but also to minimise risks of legal claims arising for discrimination.

If you have concerns regarding one of the issues raised here, or would like advice tailored to your specific situation, please contact our employment law team.

The contents of this article are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this article. © Mundays LLP

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