Can I refuse to go to work because of coronavirus if I am pregnant?


If you are a pregnant employee, you should not be made to go to work even if you are a key worker. The government has categorised pregnant women as belonging to the most vulnerable category for COVID-19 and has advised pregnant women to avoid going outside where possible. So you should have a right to stay at home for health and safety reasons if you are pregnant. However, you employer can ask you to work from home as an alternative to going to work. If your work exposes you to a significantly higher risk of COVID-19 than you would be exposed to in the outside world (specifically, in your day-to-day activities), and if there is no alternative work that you can do, or if you cannot work from home, then your employer should suspend you on full pay. Health and safety law provides that if your workplace poses a significantly higher risk to you and your baby’s health than you would be exposed to in the outside world (your day-to-day activities), then your employer has to: Temporarily adjust your working conditions to remove the risk; or if that is not possible. Offer you suitable alternative work (at the same rate of pay) if available; or if that is not possible. Suspend you from work on paid leave for as long as necessary to protect your health and safety, and that of your unborn child. If your workplace does not put you at a significantly higher risk for COVID-19 than any other workplace, but you are at higher risk compared to being at home (as seems likely, given the risks of any travel and any place of employment) then you may be entitled to refuse to go to work. However, it is not clear if you would be paid if you refused to go to work.




Will being off work affect my eligibility for SMP/SPP/SAP/ShPP?


Your eligibility for Statutory Maternity Pay (“SMP”), Statutory Paternity Pay (“SPP”), Statutory Adoption Pay (“SAP”), or Shared Parental Pay (“ShPP”) may be affected if you are self-isolating and receiving Statutory Sick Pay (“SSP”) during your calculation period, or whether or not you can continue working at home. On 23 March the government stated that anyone who can work from home, should do so, and there should be no effect if you are working from home because your wages should not go down. If you cannot work from home, then your employer can cover 80% of your wages, up to a maximum of £2,500 per month through the Coronavirus Job Retention Scheme. This could potentially affect your eligibility for SMP/SPP/SAP or ShPP if you are in your calculation period and your wages drop below £118 per week (or £120 per week after 6 April). How much SMP/SPP/SAP or ShPP you receive will depend on how much you are earning during your calculation period. For birth parents, the calculation period is the 8-week period (if you are paid weekly) or 2-month period (if you are paid monthly) leading up to the last pay day in or before the 15th week before your expected week of childbirth. You must earn an average of at least £118 per week in this period (or £120 from 6 April) to qualify for SMP/SPP/ShPP. For adoptive parents, the calculation period is the 8-week period (if you are paid weekly) or 2-month period (if you are paid monthly) leading up to the last pay day in or before the week in which you are matched with the child for adoption. You must earn an average of at least £118 per week (or £120 from 6 April) in this period to qualify for SAP/SPP/ShPP. If you are concerned that you may not be earning enough during your calculation period, speak to your employer and check the dates of your calculation period and consider how you might be able to increase your wages over this time. For example, you could request some annual leave so that you continue to receive your normal wages. Please also remember that if you do not qualify for SMP you will almost certainly qualify for Maternity Allowance.





Coronavirus Maternity etc

Can I refuse to go to work because of coronavirus if I am pregnant?


If you are a pregnant employee, you should not be made to go to work even if you are a key worker. The government has categorised pregnant women as belonging to the most vulnerable category for COVID-19 and has advised pregnant women to avoid going outside where possible. So you should have a right to stay at home for health and safety reasons if you are pregnant. However, your employer can ask you to work from home as an alternative to going to work. If your work exposes you to a significantly higher risk of COVID-19 than you would be exposed to in the outside world (specifically, in your day-to-day activities), and if there is no alternative work that you can do, or if you cannot work from home, then your employer should suspend you on full pay. Health and safety law provides that if your workplace poses a significantly higher risk to you and your baby’s health than you would be exposed to in the outside world (your day-to-day activities), then your employer has to: - Temporarily adjust your working conditions to remove the risk; or if that is not possible.
- Offer you suitable alternative work (at the same rate of pay) if available; or if that is not possible.
- Suspend you from work on paid leave for as long as necessary to protect your health and safety, and that of your unborn child. If your workplace does not put you at a significantly higher risk for COVID-19 than any other workplace, but you are at higher risk compared to being at home (as seems likely, given the risks of any travel and any place of employment) then you may be entitled to refuse to go to work. However, it is not clear if you would be paid if you refused to go to work.




Will being off work affect my entitlement to SMP/SPP/SAP/ShPP?


Your eligibility to Statutory Maternity Pay (“SMP”), Statutory Paternity Pay (“SPP”), Statutory Adoption Pay (“SAP”), or Shared Parental Pay (“ShPP”) may be affected if you are self-isolating and receiving Statutory Sick Pay (“SSP”) during your calculation period, or whether or not you can continue working at home. On 23 March the government stated that anyone who can work from home, should do so, and there should be no effect if you are working from home because your wages should not go down. If you cannot work from home, then your employer can cover 80% of your wages, up to a maximum of £2,500 per month through the Coronavirus Job Retention Scheme. This could potentially affect your entitlement to SMP/SPP/SAP or ShPP if you are in your calculation period and your wages drop below £118 per week (or £120 per week after 6 April). How much SMP/SPP/SAP or ShPP you receive will depend on how much you are earning during your calculation period. For birth parents, the calculation period is the eight weeks (if you are paid weekly) or 2-month period (if you are paid monthly) leading up to the last payday in or before the 15th week before your expected week of childbirth. You must earn an average of at least £118 per week in this period (or £120 from 6 April) to qualify for SMP/SPP/ShPP. For adoptive parents, the calculation period is the eight weeks (if you are paid weekly) or 2-month period (if you are paid monthly) leading up to the last payday in or before the week in which you are matched with the child for adoption. You must earn an average of at least £118 per week (or £120 from 6 April) in this period to qualify for SAP/SPP/ShPP. If you are concerned that you may not be earning enough during your calculation period, speak to your employer and check the dates of your calculation period and consider how you might be able to increase your wages over this time. For example, you could request some annual leave so that you continue to receive your normal wages. Please also remember that if you do not qualify for SMP, you will almost certainly qualify for Maternity Allowance.




Will being off work affect my entitlement to Maternity Allowance?


Your entitlement to Maternity Allowance (“MA”) should not be affected, but this will depend on how long you have worked or have been or been employed. You need to have worked or been employed for 26 weeks in the 66 weeks leading up to your expected week of childbirth (this is called “the test period”). You also need to have earned at least £30 in 13 of those weeks. If you are working from home and you are an employee, then will count as working and will have no impact on your MA because you should continue to be paid in full. If you are an employee and your job cannot be done from home, and your job is no longer being carried out at work, then your employer can apply to the government to cover 80% of your wages up to a maximum of £2,500 per month through the Coronavirus Job Retention Scheme which means this should count towards your entitlement to MA. If during the test period, you are or have been self-isolating due to symptoms of coronavirus and you are an employee, then this will count towards your entitlement to MA because you should have been on sick leave and getting Statutory Sick Pay (“SSP”) provided you meet the qualifying conditions for SSP, see here for more information about state benefits. Unlike Statutory Maternity Pay, where your earnings are taken into account and relate to a fixed period during your pregnancy, you have more flexibility with MA because you can choose the 13 week period in which you have earned the most to calculate your entitlement to MA. If you cannot continue working because your workplace has closed and you are self-employed or freelancing then this may have an impact on your entitlement to MA, but only if you do not have 26 weeks of work in the 66 weeks before your expected week of childbirth, or you have not earned over £30 in 13 of those weeks. As long as you meet these conditions, then you can claim MA even if you are not currently working.




Can I take sick leave if I self-isolate even if I am not sick?


Normally, if you were off work, but were not sick, then you might not get paid. But new regulations allow you to self-isolate in accordance with government guidelines if you or someone in your household is displaying symptoms or coronavirus. In this case, you will be entitled to Statutory Sick Pay (“SSP”). This only applies to the period which the guidance says you should self-isolate when you or someone in your household has symptoms, you can find out more about this here. Unless you have a statement from your doctor stating that you should not work, then you cannot get SSP (just because you are concerned about getting the virus or members of your household getting it). If you can get SSP, you should be treated as being on sick leave which means you may also be entitled to additional sick pay from your employer depending on your contract. The government have provided an “isolation note” here which you should use rather than the normal fit note. Your employer may have updated its absence policy due to the pandemic. You should check this with regards to your entitlement to sick pay, and also the impact on your absence record if you need to self-isolate. If your employer does not pay contractual sick pay, then most employees will be eligible for statutory sick pay SSP. Your employer should pay you SSP in place of your salary while you are self-isolating. The government has confirmed that employees will be eligible for SSP from day one of sick leave if they are self-isolating. If you are on furlough under the Coronavirus Job Retention Scheme, you will receive your furlough pay at 80% of your wages instead of receiving SSP.




Will being on furlough affect my right to take maternity, paternity, adoption or parental leave?


If you are on furlough, then you are still entitled to take maternity, paternity, adoption or shared parental leave. The government guidance states that those on furlough have the same rights as they did previously. However, being put on furlough during your calculation period may affect your entitlement to Statutory Maternity Pay, Statutory Paternity Pay, Statutory Adoption Pay or Shared Parental Pay.




Will my furlough pay be affected if I was on unpaid maternity, adoption or parental leave on 28 February?


If you were on unpaid maternity/adoption/parental leave, you will be treated like an employee whose pay varies. This means that you could claim for the higher of either: - the same month’s earning from the previous year;
- average monthly earnings from the 2019-20 tax year. If you have been employed for less than a year, then you can claim your average wage over the period you have worked.




I’m pregnant, and I’ve been dismissed, what can I claim?


Depending on the circumstances, if you have been dismissed during your pregnancy, then this could be unlawful. If your employer cannot afford to keep paying you because of COVID-19, then you could be put on furlough. If you were dismissed in or after the 15th week before your expected week of childbirth or after the week that you are matched with a child for adoption, then this will have no impact on your entitlement to Statutory Maternity Pay (“SMP”), Statutory Paternity Pay (“SPP”), Shared Parental Pay (“ShPP”) or Statutory Adoption Pay (“SAP”). If you were dismissed before the 15th week before your expected week of childbirth or the week that you are matched with a child for adoption, then you will not be eligible for SMP, SPP, ShPP, or SAP. However, if you were dismissed solely or mainly to avoid your employer having to make these payments, you may still be entitled to them, but it may take a while for you to get them as you will need a formal decision from either HMRC or an Employment Tribunal. If you are pregnant, you are likely to be entitled to Maternity Allowance (“MA”). For this, you need to have worked or been employed for at least 26 weeks in the 66 weeks before your baby is due and to have earned over £30 in 13 of those weeks. This work does not have to be continuous or for the same employer, and you can count self-employed and employed work. If you are already claiming tax credits, your award for these may go up if your household income has decreased by more than £2,500 per year compared to the previous tax year. However, because it is nearly the end of the tax year, you may have to wait until April for this to happen. If you are not already claiming benefits, you may be able to claim Universal Credit instead.




I’ve been suspended because I am at risk, can my employer start my maternity leave early?


If this wholly or partly because of pregnancy, then your employer can start your maternity leave early. In all cases of pregnancy-related sicknesses, your employer can trigger the start of your maternity leave but only from the 4th week before your baby is due and it will not matter what had previously been agreed with your employer.




I am on maternity or adoption or shared parental leave, and my colleagues have been put on furlough. Can I cut my leave short to receive furlough pay?


It appears that you should be able to do this. Normally, you have to give eight weeks notice to return early from maternity (or adoption or shared parental) leave. But an employee and employer can agree to a shorter notice period or no notice period at all, so you should be able to cut your leave short. If you still have some maternity (or adoption or shared parental) leave left at the end of being on furlough, you could go back on Shared Parental leave as long as your baby is not yet one year old in cases of birth, or it is not yet one year since the date of the placement in adoption cases.





Gavin Booth

The Law at Work

19 Etive Court

Cumbernauld

Lanarkshire

Scotland

G67 4JA

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