Coronavirus: pay for workers at increased risk by being pregnant, age 70+ or with underlying health conditions

As the government response to coronavirus (Covid-19) is continually being reviewed, the best source of information for all employers and employees is usually government and ACAS websites.  Advice and information is generally well written and clear so we won’t add noise but instead provide links below.  We hope you find helpful our overview of what employers should be considering.

Where unclear, it is perhaps because concerns over public health and NHS ability to cope are leading decisions.  The finer details of how the financial burden is to be shared between employee, employer and taxpayer may not yet have been fully worked out.

We are all in this together and employers are responding as sympathetically and trying to avoid financial hardship for their staff.

But what if employers can’t afford to pay sustained periods of absence, no matter how concerned they may be to help especially those at increased risk from coronavirus?  Are they required to take the burden?

Not many people know this….

The law here is currently complicated and not subject of a much scrutiny…yet.

‘isolation’  -v-  ‘social distancing’  

The practical steps defined by ‘isolation’ and, less strictly, by ‘social distancing’ should by now be familiar to everyone.

Isolation: incapable of work

If an employee is ‘isolating’ themself following government advice from relevant health agencies (Public Health England / Wales / Scotland), they are deemed to be incapable of work for purposes of the statutory sick pay scheme (see The Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020).  In practice, this probably means the employee will also be deemed incapable of work under their employment contract and so they will also be entitled to any contractual sick pay above SSP.

However, ‘isolating’ is only advised in certain circumstances and for certain short periods: 7 days where the individual has symptoms of the virus, 14 days where a member of the household has symptoms.

Although ‘social distancing’ is strongly advised for individuals at increased risk (people age 70+, with underlying health conditions or who are pregnant), that is a lesser step than isolation.

Social distancing: still capable of work

A decision, whether strongly advised or not, to extend social distancing by not attending at work is not the same as a decision to ‘isolate’.  It will not cause deemed application of SSP nor deemed entitlement to contractual sick pay.

Long periods of ‘isolation’ are, thankfully, not yet the standard advice.  Those employees who believe they have the security of contractual sick pay entitlement, some for 6 or even 12 months, to cover an extended period of social distancing by avoiding attendance at work may be mistaken.

Of course, those employers that can afford to support extended absence from work and wish to regard the absence as sickness absence will no doubt do so.  However, the number of workers and level of pay involved may mean that this difficult issue will need to be considered more carefully and sick pay refused except for defined periods of ‘isolation’.

Are pregnant workers entitled to normal pay during absence related to coronavirus?

Maybe not.

Under the Management of Health and Safety at Work Regulations 1999 (MHSW), employers are required to assess risks in the workplace.  A written assessment must be recorded and the duty is to remove the identified risks.

In respect of risks arising particularly for pregnant employees or their baby, if the risk cannot be removed the employee is entitled to be suspended on normal pay.  So does the risk of contracting coronavirus through conditions at work mean pregnant employees can choose to remain away from work at full pay?

Provided the employer is taking all reasonable steps to avoid exposure in the workplace, the condition of concern is likely to be proximity to other people.  Assuming homeworking is not an option, the in-work risk might be addressed by, for example, increased space around a workstation.  However, and as may be quite expected given the current lack of knowledge about coronavirus, what if that doesn’t go far enough to satisfy the employee still worried about risk to her baby?

Risk? What risk?

It may be important to note that, in the context of any infectious or contagious disease, when deciding if paid suspension is required to avoid a risk, the risk being considered is that which is in addition to that outside the workplace (MHSW regulation 16(4)).

Where government guidance is that pregnant employees are “strongly advised” against socialising with anyone in their homes or mixing in the social community, what additional risk arises by being near colleagues at work?

Put another way, if outside work the pregnant employee is not required to take the strict measure of ‘isolating’ on government advice but is in social contact with other people, albeit while still exercising quite stringent ‘social distancing’, is she being exposed in work to any significant risk in addition to the risk to which she exposes herself outside work?  Arguably not.

If there is no significant additional risk, it follows that the obligation to suspend on full pay does not normally arise.  If ‘isolation’ is required, which may be expected to be for specific periods (usually 7 or 14 days), then the obligation would be to pay sick pay, but that may be SSP only for many employees.

Whatever decisions are made regarding payment for absence during pregnancy, the employer will of course need to take, and should record evidence of, action to reduce risks of contamination as far as reasonably practicable.  This is desirable from a practical view, as well as legally defensive, so that the conditions in work are at least similar to those outside work, if not better.

People age 70+ or with underlying health conditions

A similar argument arises in respect of people age 70+ or with underlying health conditions.  They may argue reasonable steps should be taken to reduce risks to them at work but if not required to ‘isolate’, careful thought must be given as to whether it is necessary for them to remain away from work and, if it is, is that owing to sickness or not?

Do get in touch if you require advice on any issues raised above.

The content of this webpage is for information only and is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Jackson Osborne accepts no responsibility for the content of any third party website to which this webpage refers.

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