The Need for Open Conversations

17th August 2020

Posted In: In Your Opinion

As schools plan to re-open, are there additional considerations for women in business?

Words: Julie Galbraith

The headline that three children tested positive for covid-19 in a crèche in Meath made many of the front papers recently. However, will this news still make headlines in September when schools are likely to face positive Covid-19 test results from students and teachers? What will the implications be for employers and employees who are managing work and family commitments in a constantly changing world?

Whilst we have little certainty on what measures will be in place, the current position is that all playschools, primary and secondary schools will open as normal in the coming weeks. It is likely that parents will be asked to keep children at home if they display symptoms of being unwell.

As a mother of two young children, I know first-hand how often my girls can have a runny nose or slight temperature, only to be perfectly normal a few hours later. 

The requirement to keep children at home or pick them up from school or crèche will cause new difficulties for many parents only just coping with returning to the physical workplace.  I am being asked by many employers to advise on what “they can do” if employees are required to take time off work because of sick children or closed schools in September.

Will employees be paid if they have to stay at home?

The basic obligation to be paid arises when the employee attends at work and carries out the job. This basic obligation dates back to the master and servant relationship and couldn’t be said to describe the modern way of working. For many employers, they have accelerated their plans to have all employees work from home and slowly bring people back to the physical office since the end of May.

In line with Government guidelines, where it is possible for employees to work from home, it is best to continue home-working. For some businesses, those in retail or customer facing, staff must go to the physical place of work. For others, staff may prefer to come to the physical office from time to time as a break from working at the kitchen table.

We are continuing to urge employers to be flexible. Many of the issues faced are outside of individual employees’ control. Previously if a child was home sick from school, grandparents may have helped out, that option is not available to many working parents at the moment.

The first option therefore is to allow and support an employee to work from home and where required, around their family schedule. This may mean an employee works earlier in the morning when their partner is also at home or later in the evenings as per the needs of their family. Unfortunately, we are seeing more women take on the role of primary carer whilst also trying to maintain a full work presence. This can lead to women working very early and late at night and will no doubt lead to burnout for some employees.

What leave options are available?

If it is not possible to work from home, an employee must review other leave options. Annual leave is paid leave of a minimum of 20 days per year for a full-time employee. Employees may also have a contractual right to increased annual leave. Normally annual leave should be booked and agreed in advance. However, if an employee needs to use annual leave at short notice, we encourage employers to support such requests.

It is also possible to allow an employee to take unpaid leave, if for instance, their crèche closes for two weeks because of an outbreak in one of the classrooms.

Force majeure leave is available where there is an immediate need to care for a family member. An employee is entitled to up to five days force majeure leave in a three year period. This leave is paid leave. It will only arise where the need is unexpected, such as a text from the school on a Sunday night or Monday morning that it will not open.

Finally, the issue of sick leave and more importantly sick pay will be very important over the next few months. Naturally employees will not be required to work if they are sick. However, employers are not obliged to pay anyone who does not attend work if they are unwell. Some commentators have suggested that the lack of sick pay may have led to employees attending work when unwell in some of the identified clusters.

We have been working with companies to expand their sick leave policy to include paid sick leave. Many companies are now paying employees for the first three days of illness absence with the expectation that an employee will proactively get tested and immediately update the employer on his or her results. There are significant commercial benefits for a company if they are informed of a positive test result quickly. It will allow them to actively take steps to prevent the spread of the virus and thereby protecting employees and their business.  If a result is positive, the employer can issue specific guidance to employees, ask them to self-isolate pending a test result and also close that specific area of the company for deep cleaning. The cost of paying defined sick pay is likely to outweigh the cost of a Covid outbreak in the workplace.

We anticipate that communication and collaboration will be key as businesses move into the Autumn months.

Employers and employees will be required to have open conversations about the safety of employees, the needs of the business and the needs of an individual family.

 Author: Julie Galbraith is a Partner and Employment Law expert at top global law firm, Eversheds Sutherland (Dublin).