COVID-19: Impact of school closures and other recent developments employers need to know about (Health)

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COVID-19: Impact of school closures and other recent developments employers need to know about (Health)

Published 20 March 2020

Following on from the Prime Minister’s announcement that schools will close for the majority of pupils today, we look at the options and legal considerations for employers.

The Government is making plans to provide for schooling for critical NHS and social care workers, the details of which have been announced by the Cabinet Office.

In light of the global COVID-19 pandemic there have also been a number of recent helpful developments clarifying how employers should pay those who are unwell, or need to stay away from work as a result of self-isolation requirements.

It is an evolving situation, so this alert brings together the position as of the morning of 20 March 2020.

School closures

The recent announcement closure of schools has caused much uncertainty. This has been compounded by the advice that children should not be looked after by older grandparents due to vulnerability and social distancing. It is likely that many employees are already working from home either due to business decisions or because they are self-isolating in accordance with Government guidance. For those that are not currently working from home the employer may allow the employee to do so if their job is one that can be done remotely and the employee's circumstances permit them to do so. However, will they now need time off to look after children and/or can you permit them to work from home whilst also child-minding?

Exception for critical workers

The Government has just announced further details of its plans to keep schools open for the children of critical workers.  In health and social care this includes:

  • doctors, nurses, midwives, paramedics, social workers, care workers, and other frontline health and social care staff including volunteers;
  • the support and specialist staff required to maintain the UK’s health and social care sector;
  • those working as part of the health and social care supply chain, including producers and distributers of medicines and medical and personal protective equipment.

If one parent works in a critical role then s/he can send his/her child/children to school.  Clearly what that schooling looks like will vary depending on individual circumstances, including the ability of the child’s usual school to operate.  Specifically:

  • Arrangements, including transport arrangements, will be made for children whose schools cannot open to be educated at a different school;
  • Where possible childcare providers, schools and colleges to continue to look after critical workers’ children and vulnerable children throughout the Easter holidays;
  • Parents of critical workers do not need to to send their children to school if they are able to make arrangements for their care and do not wish to do so.

What are the legal considerations?

Employees are entitled to time off work to help someone who depends on them in an unexpected event or emergency. The amount of time off an employee takes to look after someone must be reasonable for the situation. There's no statutory right to pay for this time off, but some employers might offer pay depending on the contract or workplace policy.

There is also an entitlement to take unpaid parental leave for up to four weeks per year per child.

Employees may also request to use some of their annual leave entitlement whilst their children are at home – either in blocks or a few days spread over a number of weeks.

There is no obligation on employers to grant employees additional paid time off in these circumstances. If an employer exercises its discretion to do so, this should be done fairly and in a non-discriminatory way.

When putting together the options for employees you should also consider if your home working policies need to be updated. In particular, you may need to revise them if there is currently a restriction on home working while also looking after children.

Practical options for employers:

Given the extraordinary circumstances, employees and employers may wish to be flexible in how they approach working from home.  This is subject to the position for critical workers already explained. If someone says they can work – whether their full hours around childcare or part-time hours around childcare they should be paid their normal or potentially pro rata salary (i.e. reducing hours (and pay) by agreement).  Some employers may be willing to allow employees to work from home on full pay with the expectation that they keep on top of work as much as they can. Again, if employers exercise their discretion in this area it needs to be done fairly and in a non-discriminatory way.

Employers  and employees will need to agree a working pattern that will work for both the business and the employee. The employee could decide to split working time and childcare with partners and /or share childcare with other parents for example.

It is important that the employer highlights that the new working arrangements will be kept under review.

The Government has published more information on the Coronavirus Bill, including detail on SSP provisions.

The Government announced on 4 March that emergency measures were being taken so that SSP will now be due from the first day off work, rather than the fourth day (effectively removing the 3 day waiting period for SSP). The Government has now announced that this will have retrospective effect from 13 March 2020.  It only applies to Covid-19 related incapacity and sickness.

Employers with fewer than 250 employees will also be able to reclaim SSP paid for sickness absences relating to coronavirus during the period of the outbreak. This is because the Government wants to ensure that businesses are supported to deal with the temporary economic impact of an outbreak of coronavirus. The size of an employer will be determined by the number of people they employed as of 28 February 2020 but the eligible period for the scheme commences from 13 March 2020.

Regulations providing statutory sick pay for those who self-isolate in accordance with the public health guidance on coronavirus were brought into force on 13 March 2020.

This change has been made by altering the definition of “persons deemed incapable of work” in the Statutory Sick Pay (General) Regulations 1982 to now include a person who is ‘isolating himself [or herself] from other people in such a manner as to prevent infection or contamination with coronavirus disease, in accordance with guidance published by Public Health England, NHS National Services Scotland or Public Health Wales and effective on 12th March 2020; and [who] by reason of that isolation is unable to work’.

A link to these Regulations can be found here

The updated Government guidance to employers was published on the evening of 17 March 2020. A link to the governments guidance can be found here

Updated Acas guidance, which is also helpful and more detailed than the Government’s guidance, has been issued . A link to the governments guidance can be found here

Finally, on the evening of 17 March 2020 the Chancellor outlined some measures to help businesses, including a package of government-backed and guaranteed loans. At the time of writing we do not have the detailed provisions, however, we anticipate the measures will be relevant to our clients who are currently considering lay off or redundancy: A link to the text of the Chancellor's speech can be found here

If you would like to discuss the above developments or would like advice in relation to any aspect of your organisation’s response to the coronavirus please contact Nick Chronias or your usual DAC Beachcroft contact.

Authors

Joanne Bell

Joanne Bell

Manchester

+44 (0) 161 934 3179

Udara Ranasinghe

Udara Ranasinghe

London - Walbrook

+44 (0)20 7894 6727

Nick Chronias

Nick Chronias

London - Walbrook

+44 (0)20 7894 6701

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