May 11, 2020

With the wide-reaching effects of the COVID-19 pandemic having a direct impact on businesses worldwide, it’s no surprise that a range of different internal processes, and legal obligations, are changing rapidly.

As a business owner or part of an HR team, keeping up-to-date on these changes to maternity and childcare are particularly important.

With many elements of Government guidance now revised based on Coronavirus, having a solid understanding of what’s the same, as well as what’s different, is a great place to start.

We answer some of the most common questions you and your employees will have about maternity and childcare during and post-COVID-19 below.

Childcare

Government requirements and guidance on the kind and amount of childcare offered to employees has changed under pandemic regulations.

Through furlough, and following on from lockdown, access to childcare has vastly changed, and is no longer as easy as it once was.

As such, these new processes are designed to support parents and businesses. While ensuring children are appropriately cared for throughout quarantine and beyond.

If There Is No Childcare Available, Is My Employee Entitled Not To Work?

In short, yes.

If your employee is a parent and they have no access to childcare, they will be eligible to not work in limited circumstances.

Known as dependents leave, this is defined as any reasonable time off to care for a child.

Employees can also choose to take up to 18 weeks of unpaid parental leave per-child for children under the age of 18.

Advance notice to the employer is required for parental leave, as this is not the same as an emergency.

While this is standard practice for parents without childcare available, the current furlough scheme in place during Coronavirus means that employers may place an employee on furlough if they’re unable to work due to lack of childcare.

Rather than dependents leave or unpaid parental leave, this is paid to the employee at 80% of their wage as part of the Coronavirus Job Retention Scheme.

It’s also worth noting that employees are protected if they do choose to take statutory time off during any circumstance, including during COVID-19.

What If My Employee Refuses To Work Due To Lack Of Childcare?​

As with any circumstance, flexibility and individual discussion are needed to determine the exact conditions of your employee.

While furlough is one viable solution during the current pandemic, following COVID-19 employees may choose to go on to dependents leave immediately, as defined above.

But there are alternative options available to help employees understand how they can be supported in childcare while still working.

For example, allowing flexible working hours may be a positive outcome.

For two-parent households where both hold a 9-5 job, allowing work outside of these hours on a reduced or full-time basis can help employees with children to manage their childcare and their day-to-day work.

It’s essential for HR and small businesses to stay in touch with their employees and discuss all options available before deciding on the best path for all parties involved.

In the very rare case that you suspect misconduct from an employee in regards to childcare, whether it’s going ‘AWOL’ or being unwilling to communicate, it’s important to keep complete records.

Maternity

For employees currently on maternity leave, or planning on maternity leave shortly, the current global situation can be a massive cause of stress.

But with Government guidance and regulations, legal protection and insight have been given into what will happen during and following Coronavirus for businesses of all shapes and sizes.

As a small business or HR team, understanding these changes and supporting employees on maternity leave is a must.

Can My Employee Be Furloughed If They’re On Maternity Or Other Types Of Family Related Leave?​

Yes, your employees on maternity leave or forms of family related leave like paternity leave can be furloughed.

However, employers will not receive any form of subsidy for any statutory family related leave payment such statutory maternity/paternity pay.

As such, for many businesses, it does not make sense to furlough employees who are currently on family related leave – unless they are entitled to an enhanced contractual payment over and above any statutory entitlement.

Statutory payments cannot be claimed as part of the CJRS scheme, which means for most businesses, it does not make sense to extend that furlough to employees currently on parental leave.

My Employee Is Already Furloughed, Can They Be Paid SMP Or Other Statutory Payments?​

Under current Government guidance, you are still liable to pay SMP and any other statutory payments.

As stated above you also cannot claim for such payments under the CJRS Scheme.

New Legislation came into force on 25 April 2020 allowing employees to receive their full statutory payment based on 100% of their normal salary rather than the 80% amount paid under furlough.

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.

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