Coronavirus: FAQ’s about pregnancy and ‘high risk’ individuals

1. Can we ask a pregnant woman to start her maternity leave early?

No – not unless she is absent from work on account of a pregnancy related illness which starts (or continues) after the beginning of the 4th week before her expected week of childbirth.

Pregnant women have been advised to socially distance themselves to avoid catching the virus. It’s not yet clear if this enough to trigger ordinary maternity leave but it could be if it’s treated as sickness related absence.

The position is even less clear if a pregnant woman is self-isolating due to someone in their household having symptoms.

In respect of pregnancy related absence, it’s probably best to take a risk adverse approach and not compel someone to take maternity leave early unless you are certain their illness is pregnancy related.

2. If you have a pregnant employee whose role can’t be carried out at home and it’s not safe for them to work in their usual place do you have to send them home? What pay are they entitled to?

In most cases, you will need to send the pregnant woman home and, if there’s no work she can do there, you will have to suspend her on full pay.

In terms of health and safety, once a member of staff has formally notified you that she is pregnant you should carry out a specific risk assessment and take steps to protect her from all risks you have identified. Ordinarily, this might include allowing a woman to start later to avoid busy times on public transport etc, but in context of Coronavirus, you’ll have to do much more - particularly now the government has imposed strict conditions to enforce social distancing. 

 If you can’t protect her from risks, you must:

• Alter their working conditions or hours of work to avoid any significant risk.
• Where that’s not possible, offer her suitable alternative work on terms that are not ‘substantially less favourable'
• Where suitable alternative work is not available, or the employee reasonably refuses it, you must suspend her on full pay

Employers are expected to reduce risk to its lowest acceptable limit. Government guidance includes pregnant women in the list of those considered to be at higher risk of harm if they contract the virus. In the context of work, it says this:

“Work from home, where possible. Your employer should support you to do this. Please refer to employer guidance for more information.

Avoid non-essential use of public transport when possible.”

If there’s work that is safe for a pregnant woman to do suggest this to her. It is generally best to agree any changes, particularly if any changes to the woman’s terms and conditions of employment are likely to mean that she is paid less for the work or hours she performs. 

Take advice if you are unsure.

3. Can you require an employee considered to be ‘high risk’ to come into work if their role can’t be carried out remotely?

Certain groups of people are considered to have an increased risk of severe illness if they catch Coronavirus. These include people aged 70 and older (even if they are fit and healthy), those with underlying health conditions such diabetes, asthma, those that are seriously overweight and pregnant women. A full list is available here.

You are responsible for the health and safety of your staff and shouldn’t insist they come into work against medical or government advice. If they do attend work, you’ll need to consider sending them home for their own safety. If they can work from home, you should continue to pay them as normal. If they can’t and aren’t actually ill (and aren’t technically self isolating), you may have to treat their absence as a type of suspension and pay them (see question 4 below). We recommend that you take advice on this.

Note – some people have an even higher risk of severe illness from Coronavirus because of complex health problems. These include individuals:

• who have had an organ transplant and remain on immunosuppression medication
• with cancer who are undergoing active chemotherapy or radiotherapy
• with cancers of the blood or bone marrow such as leukaemia who are at any stage of treatment and
• with severe chest conditions such as cystic fibrosis or severe asthma (requiring hospital admissions or courses of steroid tablets)

This group must follow new NHS guidance which requires them to "shield themselves and stay at home" - probably for many weeks. Individuals are being contacted by the NHS direct and are being given specific advice.

We believe the government is planning to extend SSP entitlement to high risk individuals who are unable to work from home. Employers should regularly check the public health guidance on self-isolation as it directly affects who is entitled to SSP.

Please note: you owe all your staff a duty of care and if you insist someone in this group comes into work, it may amount to a breach of the implied duty of trust and confidence. If they resign and have two year’s continuous employment, they will be able to bring a claim for constructive dismissal.

4. How much do you have to pay someone who is in the high risk group and can’t work from home?

The position is not entirely clear.

If you have someone working for you in the high risk group and it’s not safe for them to work and you don’t have anything they can do at home, you should ask them to stay at home. This will probably amount to a suspension and they should be paid their normal pay (unless you have a contractual right to pay them less). You will only be able to take advantage of the new government scheme to meet up to 80% of their normal wages if you would otherwise lay them off or make them redundant. 

It’s possible that this type of absence may amount to ‘incapacity’ for the purposes of SSP and/or your contractual sick pay terms. With effect from 13 March 2020 the emergency Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 provide that a person is deemed incapable of work where they are:

"isolating himself 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(d) or Public Health Wales(e) and effective on 12th March 2020."

In other words self-isolation following government guidance is deemed to be absence from work due to incapacity for the purposes of SSP. But, it’s not yet clear if those who are asked to socially distance themselves because they are high risk are automatically considered to be self isolating unless they've been asked to do so by a medical professional - which is happening for those considered to be at the highest risk. We recommend that you take specific legal advice.

If you suspend a pregnant woman, you must pay them their full pay (see answer to question 1 above).

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