Here we examine the steps employers should take when colleagues/employees are unable to work because their child/children cannot attend school.
Guidance for when school issues prevent employees from working
Our guidance should prompt employers to look at their contractual obligations (including those contained in collective agreements) and follow those where they exceed basic legal entitlements. Where they have no enhanced contractual arrangements, we set out the minimum legal requirements which must be met.
There are a variety of scenarios in which an employee may be prevented from working. The most important action for an employer is to communicate with the employee and fully understand the particular circumstances they are responding to before deciding how to proceed. Our advice covers the following scenarios:
- An employee’s child is sent home from school due to an unspecified illness without coronavirus symptoms
- An employee’s child is sent home from school with coronavirus symptoms
- School closures and partial closures due to a coronavirus case
- Test and trace contact related to school attendance
- Withdrawing children from school due to fear of transmission
This page provides general guidance to members and is not legal advice.
An employee may unexpectedly be requested to collect their child from school because they are unwell. It will be important to understand whether or not the child has displayed any coronavirus symptoms in order to determine whether or not you should follow the guidance which is available in those circumstances.
If the employee’s child is not displaying (at least one of) the most important symptoms of coronavirus which are:
- a new continuous cough
- a high temperature
- a loss of, or change in, your normal sense of taste or smell (anosmia)
then they will not trigger the coronavirus guidance or regulation associated with that guidance. In these circumstances, the child will not need to be tested for coronavirus. They are not required to isolate nor are members of their household.
Some employments have flexibility to handle these issues, e.g. the employee may be able to maintain their workload from home and make up the lost time. The employee’s line manager will probably know the circumstances where this will be an appropriate and simple solution. In some employment circumstances shifts can be looked at to see whether some accommodation can be found which allows employment with pay to be uninterrupted.
If the employee is prevented from working due to their child being sent home they will need to ask their employer for time off. Employers may already have a contractual term or policy governing this situation, such as an emergency leave policy or time off for dependents policy. You should check that out first and follow your contractual obligation or stated policy in handling the leave request. If you do not have a policy on leave covering these circumstances, you must observe the basic legal requirements for emergency leave and time off for dependents:
- Employees are entitled to unpaid time off to deal with an emergency involving their child.
- There’s no guidance on what is a reasonable amount of time off. Previously it was regarded as time off to deal with the immediate aftermath, e.g. take the child to the doctor where necessary and make care arrangements.
- During the pandemic, it is certainly arguable that what is ‘reasonable’ may be extended compared to before the pandemic, if for example care options are more limited due to restrictions on households mixing etc.
If the employee requires more time than you believe they are contractually or legally entitled to you might wish to consider with the employee whether or not taking some paid holiday leave would be a solution. If that is not an option you could choose to grant them a discretionary form of leave, paid or unpaid.
f the employee’s child is displaying the most important symptoms of coronavirus, which are:
- a new continuous cough
- a high temperature
- a loss of, or change in, your normal sense of taste or smell (anosmia)
then the situation differs from that covered in scenario one (sent home from school with unspecified illness). Emergency leave is unlikely to take precedence. The self-isolation requirements will be above and beyond dealing with the immediate aftermath of receiving the call from school.
The employee will need to arrange for their child to be tested. Secondly the child will need to self-isolate for 10 days, or longer if they still have a temperature after 10 days. They don’t need to self-isolate for more than 10 days if they only have a cough or loss of smell or taste. The NHS has detailed guidance.
Members of the child’s household will need to self-isolate for 14 days from the date their child became ill. Members of the child’s household will not need to be tested unless they develop one of the most important symptoms (listed above). If they do develop symptoms they will need to arrange for a test and if the test is positive isolate for a further 10 days from the beginning of their illness. Even if their test produces a negative result, they will still need to complete the 14-day isolation period.
Some employments have flexibility to handle these issues, e.g. the employee may be able to maintain their workload from home. In other cases, the employee will need leave from work. From 28 September 2020 the law changed in England to make it a criminal offence to breach self-isolation requirements and a substantial fine regime has been put in place. They are obliged under these regulations to notify their employer that they are self-isolating.
Employers in England can also be fined where they fail to stop an employee working where the worker has tested positive or lives with someone who has tested positive. Leave from work in some form must therefore be granted. A crucial question for employers will be whether or not the resulting leave for self-isolation triggers an obligation to pay the employee. The following issues will need to be considered:
- Where the employee has no symptoms themselves, and has not tested positive for Coronavirus, firstly check your contractual provision for sick pay and your policies to see whether or not you have provisions in place which exceed the minimum legal entitlement. If that is the case, follow those provisions.
- In many cases, unless the employee is ill themselves, they will not trigger a right under contractual sick pay schemes but we recommend you take specific legal advice on your contractual sick pay scheme if you are unsure.
- If there are no such contractual or policy enhancements in place, self-isolation triggers a right to Statutory Sick Pay (SSP) from the first day of absence, even if the employee is not ill. This is due to changes in the SSP regulation made to handle the pandemic.
- If the employee becomes ill, then contractual and / or policy based sick pay provisions will be triggered and, in their absence, an entitlement to SSP.
- If the employee works in England and has been told to self-isolate by NHS Test and Trace and they will lose income as a result, they may be able to claim a £500 Test and Trace Support Payment subject to meeting the scheme eligibility rules.
The eligibility criteria for the Test and Trace Support payment are:
- you comply with the NHS Test and Trace notification to self-isolate;
- you are employed or self-employed;
- you are unable to work from home and will lose income as a result;
- you are in receipt of one of the following benefits: - Universal Credit - Working Tax Credit - Income-based Employment and Support Allowance - Income-based Job Seeker’s Allowance - Income Support - Housing Benefit - Pension Credit
If the school has closed or partially closed because the employee’s child is displaying one of the main symptoms of coronavirus, follow the guidance set out in scenario two (employee’s child is sent home from school with coronavirus symptoms). If the school closes but the employee’s child has no symptoms themselves, then the following guidance applies.
- The school will give the employee guidance and updates on the likely period of closure.
- The school will be working with Public Health England (PHE) and / or their Local Health Protection Team (HPT) who will determine what steps need to be taken.
- They will identify close contacts of symptomatic pupils or teachers. Contact tracers will then contact the people who need to self-isolate for 14 days.
- The 14-day period runs from the last contact with the person who had symptoms and has tested positive.
- A single case of coronavirus is unlikely to close a school or a section of a school for any period. The guidance states:
"If schools have two or more confirmed cases within 14 days, or an overall rise in sickness absence where coronavirus (COVID-19) is suspected, they may have an outbreak and must continue to work with their local health protection team who will be able to advise if additional action is required. In some cases, health protection teams may recommend that a larger number of other pupils self-isolate at home as a precautionary measure – perhaps the whole site or year group. If schools are implementing controls from this list, addressing the risks they have identified and therefore reducing transmission risks, whole school closure based on cases within the school will not generally be necessary, and should not be considered except on the advice of health protection teams.”
The employee will not be under a duty to self-isolate merely because their child’s school has closed or because their child has been identified as a close contact. The relevant guidance states that “household members of those contacts who are sent home do not need to self-isolate themselves unless the child… who is self-isolating subsequently develops symptoms.”
The requirement to self-isolate will only be triggered in relation to the employee where (any of the following):
- The employee’s child or someone else in the household develops symptoms.
- The employee develops symptoms.
- The employee is told to self-isolate by NHS Test and Trace.
Where the requirement to self-isolate has not been triggered, the employee’s entitlement to leave and pay is no different to the rights explained in relation to non-coronavirus illness cases set out in scenario one (above). They may still require some form of leave to meet additional childcare requirements.
As identified in scenario three (above: school closures and partial closures due to a coronavirus case) if NHS Test and Trace make contact and recommend that the child self-isolates, this would not automatically require the employee to self-isolate.
See scenario three for where the requirement to self-isolate may be triggered and unless and until it is triggered, see scenario one (an employee’s child is sent home from school due to an unspecified illness without coronavirus symptoms) in relation to leave and pay requirements.
Choosing to stay at home to look after children where neither the employee nor the child is required to self-isolate would not trigger any automatic rights to paid leave. As is always the case, contractual and policy entitlements may provide for leave in some circumstances. Shielding guidance has been postponed and is unlikely to be a factor to take into account unless the child or the employee has particular health risks and has been advised by a medical practitioner to continue to shield.
This is not likely to be a frequent request. Attendance at school remains compulsory. If that situation changes, the employee might book holiday leave, time off for dependents (see secnario one) or ask for parental leave. An employee has a legal right to request up to four weeks unpaid parental leave per annum (subject to a cumulative maximum of 18 weeks) subject to meeting the following eligibility criteria:
- they’ve been in the company for more than a year
- they’re named on the child’s birth or adoption certificate or they have or expect to have parental responsibility
- they’re not self-employed or a ‘worker’, e.g. an agency worker or contractor
- they’re not a foster parent (unless they’ve secured parental responsibility through the courts)
- the child is under 18
Exercising this right does require at least 21 days’ notice and in some circumstances an employer can delay the beginning of the leave. Other options include booking holiday leave or agreeing a period of special paid or unpaid leave. Some employers may have a career break policy which might something to consider if the absence may be longer term.