Schools have been working under extreme circumstances since September. Most have done a fantastic job of piecing together relevant parts of government guidance in order to guide parents through what needs to happen if a case is detected at school.
The problem is the prevalence of the virus, which often leads to large numbers of children sent home to self-isolate, often without symptoms.
As a result, there is a lingering uncertainty amongst parents and guardians as to whether they are permitted to attend their workplaces if their child is required to self-isolate.
James Tamm, Director of Legal Services at Ellis Whittam, explains: “Reviewing the latest guidance, the likelihood is yes, parents can attend work if their child has been sent home due to COVID-19 provided they are asymptomatic.
“However, employers have choice, and employees need to clearly understand what must happen if anyone in their household goes on to show symptoms.”
Please note that the information in this blog relates to the situation in England. Some parts of Wales, Scotland and Northern Ireland may have slightly different rules.
What the latest guidance says
According to the official NHS Test and Trace guidelines, individuals who have had recent contact with someone who has tested positive for coronavirus will be required to self-isolate for a period of 14 days.
The guidance goes on to say that “if you live with other people, they do not need to self-isolate”. However, it also states that they “should avoid contact with you as far as possible and follow advice on hygiene”.
The problem in most schools is that NHS Test and Trace are not calling the shots, and the school often takes the decision as to which pupils need to self-isolate. Furthermore, this guidance does not acknowledge that parents will be unlikely to avoid contact with young children, which raises the question as to whether they should be self-isolating also.
The government’s guidance is clearer on what to do if a child is showing symptoms of COVID-19 at school. Emergency guidelines published by the Department for Education state that if anyone in a school becomes symptomatic (continuous cough, high temperature, changes to taste or smell), they must be sent home immediately, self-isolate for at least 10 days, and seek a COVID-19 test.
The Test and Trace guidelines note that in this scenario, all members of the same household must self-isolate for a period of 14 days. This is also confirmed in the government’s self-isolation guidance. However, unless the child or the parent have symptoms, the parent does not appear to be required to self-isolate if the child is sent home though Test and Trace.
Can I go to work if my child has COVID symptoms?
Though the lack of clarity has brought about a general confusion, there is scope for employees who are unable to work remotely to be particularly hard hit.
The latest guidance following the extended furlough scheme confirms that if someone cannot attend work as they are required to care for a dependant – which would include a child – then it is permissible to place them on furlough. Whilst this remains the best option, whether or not to place an employee on furlough is completely at the employer’s discretion. Given the requirement to contribute employer NICs and pension – with the threat that greater employer contributions may be required from January 2021 – the situation may fall to be dealt with by the policies and procedures you have in place.
As an alternative to furlough, the employee can either take unpaid leave or annual leave for the period of time required to look after a child, or – as per the government’s published guidelines around “time off for family and dependants” – an employer “may pay you for time off to look after dependants, but they don’t have to”. If a parent wishes to attend their workplace and is ready and willing to work but their employer forbids this as a precaution, this could be categorised as a suspension from work on health and safety grounds. Generally, this would be on full pay, unless there are contractual provisions otherwise. Depending on eligibility, the extended furlough scheme might also be considered.
Staying off work to look after a child would not be classed as sick leave, so there is no entitlement to SSP. Alternatives would therefore have to be considered, including taking unpaid leave.
However, there is another scenario that could entitle the employee to full pay. If the individual wishes to attend their workplace and is ready and willing to work but the employer forbids them from doing so on a precautionary basis, this could be categorised as a suspension from work on health and safety grounds. Generally, this would be on full pay, although there may be contractual provisions that allow the individual to be suspended without pay.
Again, published guidelines clarify this scenario, and state that: “If you’ve been in your job for a month or more when you’re suspended, you have the right to be paid for up to 26 weeks of suspension.”
Another option would be for the employer to allow the employee to take the period as annual leave.
All parties should be conscious that any of the above could change depending on the contractual obligations.
That said, if anyone in the employee’s household develops symptoms of COVID-19, the complexion of the scenario changes entirely. Here, under the recently amended regulations, the employee is entitled to SSP for every day of absence (as opposed to from the fourth day of absence).
The rules around self-isolation are changing constantly, so it is imperative that you check the latest guidance.