Q: Are employees entitled to paid time off during the pandemic if their child’s school is closed for any reason such as national or regional school closures?
From August and September 2020 onwards there was intended to be full reopening of all schools and the reintroduction of mandatory attendance for all children.
In January 2021, the Prime Minister announced the staggered return for some pupils in January 2021 in England will not go ahead. Colleges, primary and secondary schools will remain closed until after the February half term apart from vulnerable children and the children of critical workers. Most children will learn remotely until February half term although early years settings such as nurseries remain open.
Different arrangements apply in the devolved regions:
- Scotland: Nursery, primary and secondary schools remain closed. The situation will be reviewed on 18 January, and every two weeks thereafter but it is unlikely schools will reopen until 1 February at the earliest. Children classed as vulnerable and those of key workers will still be able to attend school.
- Wales: schools and colleges have online learning until at least 18 January.
- Northern Ireland: there will be an extended period of remote learning for schools in Northern Ireland for the rest of January, probably into February.
Under the original proposals for an earlier return secondary schools and colleges were going ask all pupils to attend school to implement mass screening using low-cost COVID-19 testing (lateral flow tests). These tests do not need laboratory processing and give results in under an hour, but may be less accurate. It may be that this screening will still take place when schools eventually do return.
As the government’s back to school plans for January 2021 have changed several times over the Christmas and New Year period, employees may have concerns about the closures and, later on, the ability to reopen safely. The position regarding school openings and closures is complex and can change rapidly. Employers should check government advice regularly. Employers and employees should be as flexible as possible, with employers taking account of staff’s childcare responsibilities and individual circumstances.
Government guidance requires schools to have contingency plans in place for remote learning anyway. These plans should be ready to be triggered in case of closures, national or local lockdowns or for when pupils have to self-isolate. Previously the government outlined potential changes to school attendance as a last resort. Where school closures accompany the lockdown, schools will only allow full-time on-site provision to priority groups such as vulnerable children and the children of critical workers. When this happens remote education should be provided to all other pupils. Alternative government contingency planning has previously suggested that in higher alert levels secondary schools may use two week on site rotas followed by two weeks at home to help break chains of transmission. This may be a method that is considered again should the need arise.
When schools return they will attempt to follow COVID-19 secure measures to reduce the risk of virus transmission. Schools were previously being asked to keep children in class or year group sized 'bubbles' together with protective measures such distancing teachers, increased frequency of cleaning and reduction in use of shared items. These measures will presumably continue perhaps with additional advice.
Outbreaks in school
If there is a positive case or case in a specific school or college, the Public Health England local health protection team will advise on the appropriate action including groups of pupils and staff being asked to self-isolate at home for up to 10 days as a precautionary measure. Schools plans should include remote education for pupils who are self-isolating.
If a school outbreak in is confirmed a mobile testing unit may be used to test those in contact with the pupil or staff who tested positive. All staff, pupils and their families should have access to testing if they develop symptoms and schools should have testing kits for children and staff who have been unable to get a test.
Options
In practice there are a limited number of paid and unpaid options (see below) for employers with employees whose child’s school needs to fully or partially close in response to an outbreak. Employees’ legal entitlements to time off when schools and other childcare providers are closed are fairly restricted. However, if there is a national or local outbreak (and high tier alert level in England), employers may be closed too. If they are in a different area and are not closed they should discuss matters with the employee and be flexible where possible to decide on the most sensible course, even if that is over and above the statutory legal minimum.
Generally employers can issue reasonable instructions to employees depending on each individual situation. Employers must have communicated and complied with their health and safety duties whilst taking into account any special vulnerabilities (including any guidance for the clinically vulnerable) and those classified as disabled.
Options during full or partial school closure
The pandemic and it's national and local outbreaks are exceptional circumstances and both employers and employees should take reasonable steps to prevent the risk and spread of the virus and follow the latest national and local government advice. It's crucial that employers remember that the physical, emotional and mental wellbeing of the workforce remains the key principle of managing any return to the workplace.
Home working
On 4 January 2021 the Prime Minister announced a further national lockdown which means that people may only leave their home for work if they cannot reasonably work from home. Those who cannot work from home including, but not limited to, people who work in critical national infrastructure, construction, or manufacturing, can continue to travel to their workplace.
In the event of this lockdown or an outbreak, many office workers can work from home in some capacity and be paid as usual. This is not possible in all cases. Employers must continue to communicate openly with employees and workers, to understand their concerns and perspectives. In many situations if it is not essential for work to happen in the workplace, during the pandemic the default is that employees should continue to work from home. The Government has released guidance on Working safely during coronavirus for employers who have to remain open and are attempting to make workplaces COVID-secure and organisations should keep checking the government website for the latest information.
Difficulties with home working
Home working may be harder for single parents with young children and, because women tend to have more childcare responsibilities than men, employers may discriminate if they facilitate home working for male employees but indicate that it is not working for female ones. If an employee cannot focus at home because of caring for young children it may be possible to agree flexible working arrangements including adjustments to hours and times of work.
Employers of employees who are unable to work from home have a number of other options, which are described below.
Support schemes
The Coronavirus Job Retention Scheme (or furlough) remains open until the end of April unless extended. If schools are closed, furlough is a good option. Employers are not obliged to furlough staff, but if they have less work due to the virus employers may willingly agree to furlough staff although there are some associated costs, in particular regarding employer NICs and pension contributions.
Earlier government guidance confirmed that:
- Parents whose children cannot attend school could be furloughed under the scheme if the employer agrees.
- Those who cannot continue working because of childcare responsibilities could fall within the scheme.
Employers can agree that employees will be flexibly furloughed and work less or may prefer them to work from home if there is work for them to undertake. Employers or employees both need to agree to the arrangement.
Flexible working
Employers are always obliged to consider flexible working requests. In the context of localised school closures, there are a number of options available such as spreading working hours out by agreement so that employees can work when younger children are asleep.
Unpaid time off for dependants
Employees have the right to take unpaid time off for dependants which usually lasts only for a short time to organise their care. This period of unpaid leave enables employees to take action necessary because of an unexpected disruption or termination of arrangements for the care of that dependant. This would cover time off to arrange alternative childcare but does not cover extended time off for employees to look after their children themselves.
Unpaid parental leave
Employees who have been with the employer for more than a year can also take unpaid parental leave. Normally notice is needed but employers may agree to shorten the notice period. This leave is 18 weeks per child before the child turns 18 and must usually be taken in blocks of a week with a maximum of four weeks each year.
Sick and self-isolation leave
If parents are self-isolating because they or someone in the household has symptoms of coronavirus, or who has been told to isolate by the track and trace system, then the employees may be able to claim statutory sick pay.
Annual leave
A rare alternative in some situations may be for the employee to take some annual leave. The benefit of this for the parent concerned is that it would be paid at their full rates.
Unpaid and other leave
If employers' operations are likely to be severely affected on a long-term basis, employers may consider plans such as a voluntary special leave policy on a temporary or longer basis where individuals can opt to take paid or unpaid leave. There could be some employees who are willing to take additional time off and would welcome a break, but others may struggle financially if they lose pay. Employers could consider offering a shorter working week or other flexible resourcing arrangements and communicate the business reasons to employees. You may wish to consider short-time and lay-off working arrangements - there's more information on Lay-offs and short-time working on the government website.