*This is an update to our article published on 28 September 2020. We have now clarified that the new Coronavirus regulations do not require a parent to self-isolate if their child has been ordered to self-isolate as a precautionary measure (i.e where their child has not tested positive or exhibited symptoms themselves), however parents do have to ensure that their child self-isolates. Nevertheless, the effect on working parents could be significant (discussed further below). We have therefore updated our original article and you can read the latest version below.*

On 27 September 2020, new Coronavirus regulations were published which came into effect at midnight.

The regulations (full title: the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020) are, unfortunately, complex. It is important to note that they only apply in England.

One of the main purposes of the regulations is to set out the circumstances in which a person must self-isolate and for how long. The self-isolation requirements apply to adults who have tested positive for Coronavirus (or who have been in contact with someone, after 28 September 2020, who has tested positive for Coronavirus).

The regulations also apply to adults who are responsible for a child who has tested positive for Coronavirus (or who has been in contact with someone who has). In such circumstances, parents are responsible, under the new regulations, for ensuring that their child properly self-isolates.  This could potentially apply where their child’s school has sent them home as a precautionary measure because another student has tested positive. The regulations apply where a person is notified that they (or their child) has tested positive or been in contact with someone who has tested positive by any of the following:

  • The Secretary of State
  • A person employed or engaged for the purposes of the health service
  • A person employed or engaged by a local authority

It is not clear whether a notification by a child’s school would be classed as notification by “a person employed or engaged by a local authority”.

Either way, if an employee’s child is sent home from school as a precautionary measure, the employee will need to stay home to look after them. It seems likely that this may happen several times over the coming months. Where employees are able to work from home, this will be disruptive but should at least mean that they can continue to be paid as normal (unless their child is very young and/or requires constant attention meaning that the employee simply cannot work). However, employees who cannot work from home may be left in a very difficult position.

Some parents may have been on furlough or flexible furlough over the summer while schools have been closed, meaning that they have been able to care for their children whilst being paid (albeit at a reduced rate). But with the furlough scheme coming to an end this month and the new Job Support Scheme looking rather unattractive to employers, what are the options for employees who are unable to work from home in these circumstances?

Unless an employee’s child has tested positive for Coronavirus or is experiencing symptoms (meaning that the employee must also self-isolate), employees would not be entitled to statutory sick pay (“SSP”) in circumstances where their child has only been sent home from school as a precautionary measure and the employee needs to look after them. The options available to such employees are therefore generally limited to the following:

  • Taking holiday (if they have any holiday entitlement left for the year)
  • Taking unpaid parental leave (although this is subject to limitations unless the employer has a more generous policy)
  • Taking time off to care for a dependent (but this is also unpaid unless the employer has a more generous policy and is usually designed for very short periods of absence)

Some employers may be willing to offer paid time off as a goodwill gesture. However, since it is likely that children will continue to be sent home from school on a fairly regular basis over the coming months, employers are unlikely to be able to offer paid leave to all affected employees on an ongoing basis.

It remains to be seen whether the Government will extend the scope of the SSP regulations to cover this scenario, but with recent calls to extend certain family-friendly rights (such as maternity leave/pay) in light of Covid-19 having been largely rejected by the Government, there is no guarantee.

Duty on employers to prevent staff who should be self-isolating from coming into work

A further and important point of note for employers is that the regulations introduce a duty on employers to prevent staff from coming into work when they should be self-isolating. Specifically, an employer will commit an offence if they knowingly allow a worker or an agency worker to attend their workplace or any other place other than the location where the individual is self-isolating. If the worker can do their job from the place where they are self-isolating (presumably their home) then they can continue to work.

As set out above, this includes individuals who are required to self-isolate because they live with someone who has tested positive (or they have been in contact with someone who has tested positive).

The fines for allowing a worker to attend work in breach of the regulations start at £1,000 and rise to £10,000 for repeat offences, so employers would be well-advised to adhere to the new regulations and to educate staff regarding the new requirements.

The regulations only apply where an employer is aware that a worker is required to self-isolate. In this regard, the regulations introduce a new requirement on workers and agency workers to tell their employer/agency that they are required to self-isolate.

We would therefore recommend that employers, if they have not already done so, make it clear to staff that they must be informed if an individual is required to self-isolate.

If you have any queries please don’t hesitate to contact your usual member of the Brabners Employment Team.