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Home Advice for Parents & CarersCoronavirus (COVID-19) Coronavirus (COVID-19) – Rights for new and future parents

Coronavirus (COVID-19) – Rights for new and future parents

Last updated 29 May 2020.

We have gathered together some of the issues for pregnant workers and new or future parents during the coronavirus pandemic. 

*PLEASE FOLLOW ANY GOVERNMENT GUIDANCE AS WELL AS THIS ARTICLE, AS GUIDANCE ON CORONAVIRUS (COVID-19) IS CHANGING DAILY*

You might also want to look at our pages on:

Maternity Action have produced a template letter to give to your employer if you are pregnant and have concerns about your health & safety at work. They have also produced a template letter for agency workers.

You may also find the RCOG (Royal College of Obstetricians and Gynaecologists) guidance on pregnancy and coronavirus useful.

I am pregnant

I am pregnant. Can I refuse to go to work because of coronavirus?

If your work exposes you to a significantly higher risk of COVID-19 than you would be exposed to “outside the workplace” (i.e. in your day-to-day activities), then your employer should suspend you on full pay if there is no work that you can do from home. This would apply if, for example, you are a frontline NHS employee or a care worker where social distancing is not possible. Health and safety law says that if your workplace poses a significantly higher risk to you and your baby’s health than you would be exposed to “outside the workplace” (i.e. in your day-to-day activities), your employer has to:

  1. Temporarily adjust your working conditions to remove the risk; or, if that is not possible,
  2. Offer you suitable alternative work (at the same pay) if available; or, if that is not possible,
  3. Suspend you from work on paid leave for as long as necessary to protect your health and safety, and that of your unborn child.

In its Working Safely During Coronavirus guidance, the government states that expectant mothers “are, as always, entitled to suspension on full pay if suitable roles cannot be found“. The government has published specific guidance for employers in different sectors – see here for links to this sector-specific guidance.

If your workplace does not put you at a significantly higher risk for COVID-19 than other workplaces, but you are at higher risk compared to being at home (as seems likely, given the risks of any travel and any place of employment) we think you are entitled to refuse to come to work, but the law at present is unclear as to whether or not you would be paid.

You could argue that it would be a breach of your employment contract (more specifically, a breach of the mutual duty of trust and confidence) to force you to come to work. But this does not necessarily mean you will continue to get paid (if you cannot work from home). The first legal question is whether you are at a higher risk than “outside the workplace”. “Outside the workplace” usually refers to other things you do in your day to day life – e.g. going to shops, taking public transportation. If the risk at work is not higher than “outside the workplace”, you do not have the right to continue receiving your full pay if you are suspended at home (Managements of Safety and Health at Work Regulation 16 (4)). You could have an argument to say that at the moment, “outside the workplace” means comparing your workplace to home, because in current circumstances, most people who are not going into work (especially those who are pregnant) have been told to stay at home and observe social distancing. You may be able to use this argument to argue that you should be suspended on full pay, but the law is unclear. 

If you are self-employed, you unfortunately do not have the right to have your work adjusted or to be suspended on full pay. If you are self-employed and pregnant, continue to follow government guidance in relation to COVID-19 and social distancing where you can.

For information on financial support see our pages on benefits and tax credits and the Gov.uk list of online benefits calculators. If your employer is being difficult, you might want to use this draft letter for employees prepared by Maternity Action (there is also a draft letter for agency workers).

What if I am a healthcare worker and pregnant. Do I have to work with patients?

The Royal College of Obstetricians and Gynaecologists (RCOG) has published guidance for pregnant healthcare workers. This guidance isn’t binding, but we think that it would be persuasive in asking your employer to either allow you to work from home, or to work in a non-patient facing role. The guidance makes clear that health and safety legislation already in place to protect pregnant workers must be followed. They still distinguish between pregnant women who are less than 28 weeks pregnant, and those who are over 28 weeks pregnant or with underlying health conditions.

The RCOG guidance states at 3.1: “Pregnant women can only continue to work in direct patient-facing roles if they are under 28 weeks’ gestation and if this follows a risk assessment that recommends they can continue working, subject to modification of the working environment and deployment to suitable alternative duties. Pregnant women of any gestation should not be required to continue working if this is not supported by the risk assessment, as per the Management of Health and Safety at Work Regulations 1999 (MHSW). If a risk assessment indicates that a pregnant woman under 28 weeks’ gestation can continue to work in a patient facing role, and the woman chooses to do so, she should be supported by her employer. Suitable alternative duties might include remote triage, telephone consultations, governance or administrative roles. ”

This guidance makes very clear that all pregnant women who are working in direct patient facing healthcare roles must be offered a risk assessment. It does not matter how far along you are in your pregnancy. The RCOG guidance says that you can only continue to work in these direct patient facing roles if the risk assessment advises that it is safe to do so. This means that employers must remove any risks (that are greater in the workplace than to what they would be exposed to outside of the workplace), or else you should be offered suitable alternative work. The guidance also makes clear that all pregnant workers should, if possible, avoid working with patients with confirmed or suspected COVID-19. All those working with COVID-19 patients should wear PPE.

If you are more than 28 weeks pregnant, or you have an underlying health condition such as a heart or lung disease (at any point in your pregnancy), the guidance recommends staying home and working from home or flexibly wherever that is possible. For example, you could offer to take on administrative duties or telephone or videoconferencing consultations. You should be paid your full salary if your employer adjusts your role. You should not be deployed in roles where you are working with patients.

If your employer is being difficult, you might want to use this draft letter  for employees prepared by Maternity Action (there is also a draft letter for agency workers).

Can I take sick leave if I am self-isolating or shielding (even though I am not technically sick)?

Usually, if you stay away from work but aren’t sick, you may not get paid.

But new regulations now say that you can get Statutory Sick Pay (SSP) if:

  1. you are self-isolating in accordance with the government’s advice (i.e. because you or someone in your household is displaying symptoms), or
  2. you are shielding in accordance with government guidance because you are deemed to be clinically extremely vulnerable to coronavirus,

Unless you have a statement from a doctor that you shouldn’t work, you cannot get SSP just because you are worried about catching coronavirus, or members of your household catching it.

1. If you are self-isolating because you or someone in your household has symptoms of coronavirus, you should be treated as on sick leave and you should get SSP if you qualify. You may also be entitled to additional sick pay from your employer (this will depend on your contract). To make it easier for people to provide evidence to their employer that they need to stay at home due to symptoms in their household, the government have developed an alternative form of evidence to the fit note, called an ‘isolation note’, that you can access online via the NHS website. The government has confirmed that employees will be eligible for SSP from day 1 of sick leave when self isolating to prevent the spread of coronavirus (i.e. due to symptoms they have, or someone in their household has), rather than day four (the usual rule).

2. If you are shielding in accordance with official public health guidance because you are deemed clinically extremely vulnerable, then you can get SSP for as long as you have been told you should be shielding. The right to SSP for employees who are shielding was introduced on 16 April. You can get SSP for the whole period that you are off work shielding, from 16 April onwards. But bear in mind that your employer can also put you on furlough if you are shielding, which is likely to be more financially beneficial for you.

Your employer may have updated their sickness absence policies in light of the coronavirus outbreak. Check with your employer as regards your entitlement to sick pay and also the impact on your sickness record if you need to self-isolate.

If you are furloughed under the Coronavirus Job Retention Scheme and become sick, you will receive your furloughed pay (80% or more of wages) instead of receiving SSP only. 

I’m pregnant and at risk. I’ve been suspended as I cannot work from home. Can my employer start my maternity leave early?

Yes, as your suspension is an absence that’s ‘wholly or partly because of pregnancy’. Like in all pregnancy-related sicknesses, your employer can trigger the start of your maternity leave but only from the 4th week before your baby is due – it does not matter what you previously agreed with your employer.

I’m a pregnant employee who is classed as clinically extremely vulnerable to coronavirus. Can I be put on furlough if I am off work because I am shielding?

Yes, you can be furloughed if you have to stay at home because you are shielding in accordance with public health guidance (or need to stay home with someone who is shielding) and cannot work as a result.

Note that not all pregnant women have been deemed to be ‘extremely vulnerable’ and told that they should be shielding. If you are not sure whether or not you are extremely vulnerable, check the government guidance on shielding. 

If you have been told to ‘shield’, and you can work from home, you should do so. But if you cannot work from home, and you cannot go into work for shielding reasons, then government guidance says that your employer can apply to the Coronavirus Job Retention Scheme to cover 80% of your wages while you are off work. 

Do remember your employer still has to agree to furlough you. It is therefore important to make clear to your employer that furloughing will not have a detrimental impact on them, because they can recover 80% of your wages from the government. They can top up the extra 20% of your wages, but they do not have to. Putting you on furlough will make it much easier for your employer to get their business back up and running smoothly as soon as they can.  

Being on furlough (and receiving only 80% pay) will not impact your eligibility for statutory maternity, adoption, paternity, or shared parental pay.

If your employer refuses to furlough you and you are shielding in accordance with official public health guidance, then you can get Statutory Sick Pay (SSP) for as long as you have been told you should be shielding. The right to SSP for employees who are shielding was introduced on 16 April. You can get SSP for the period that you were off work shielding, from 16 April onwards.

If your employer refuses to furlough you, you may be able to argue that they are discriminating against you, see the question on discrimination on our furlough page

Effect on family-related pay

Will statutory sick pay (SSP) affect my statutory maternity, adoption, shared parental or paternity pay?

Being on Statutory Sick Pay (SSP) may affect your entitlement to statutory maternity pay (SMP), statutory adoption pay (SAP), statutory paternity pay (SPP), and statutory shared parental pay (ShPP). This is because whether (and how much) SMP/SPP/SAP/ShPP you receive all depends on how much you earn in your ‘calculation period’.

When is my ‘calculation period’?

For birth parents, the calculation period is the 8-week period (if you are paid weekly) or 2-month period (if you are paid monthly) leading up to the last payday in or before the 15th week before your expected week of childbirth. You must earn an average of at least £120 per week in this period to qualify for SMP/SPP/ShPP.

For adoptive parents, the calculation period is the 8-week period (if you are paid weekly) or 2-month period (if you are paid monthly) leading up to last payday in or before the week in which you are matched with the child for adoption. You must earn an average of at least £120 per week in this period to qualify for SAP/SPP/ShPP.

If you are concerned that you may not be earning enough during the calculation period, speak to your HR department or manager to check the dates of your calculation period and consider how you might be able to increase your earnings over this time. For example,

  • you can request to take some annual leave so that you continue to receive your normal wages, and
  • if there is any work that you can do any work from home, then you should be able to do so and receive your normal salary (in line with hours worked).

If you are shielding or live with someone who is shielding, you can also ask your employer to put you on ‘furlough’ which will not affect your entitlement to pay, because you will be treated as earning your ‘usual wages’ while you are furloughed.

And if your workplace puts you at risk of coronavirus and you are pregnant, then you may be able to argue that your employer should suspend you on full pay instead of sick pay.

For more information on calculating pay when you have had a baby or are adopting, have a look at Working Families’ pages on:

And do remember even if you don’t qualify for SMP you will almost certainly qualify for Maternity Allowance.

Will furlough (80% pay) affect my maternity, adoption, paternity or shared parental pay?

No, being on furlough will not impact your eligibility for:

  • statutory maternity pay and maternity allowance,
  • statutory adoption pay,
  • statutory paternity pay, or
  • statutory shared parental pay.

According to government guidance from 24 April, your eligibility will be based on your usual pay (or what you would have been paid had you not been furloughed).

Your ‘usual pay’ will be the higher of either what you:

  • actually received from your employer while you were on furlough; or
  • would have received from your employer had you not been on furlough.

If you are not sure what you ‘would have received’  had you not been on furlough, a useful starting point is to check what your furlough pay would have been based on. Your employer should also consider additional payments that you would have received, including bonus and commission payments.

Read our page on furlough for more information on how the furlough scheme works. 

Will unpaid leave affect my statutory maternity, adoption, paternity or shared parental pay?

Being on unpaid leave may affect your entitlement to statutory maternity pay (SMP), statutory adoption pay (SAP), statutory paternity pay (SPP), and statutory shared parental pay (ShPP). This is because whether (and how much) SMP/SPP/SAP/ShPP you receive all depends on how much you earn in your ‘calculation period’.

When is my ‘calculation period’?

For birth parents, the calculation period is the 8-week period (if you are paid weekly) or 2-month period (if you are paid monthly) leading up to the last payday in or before the 15th week before your expected week of childbirth. You must earn an average of at least £120 per week in this period to qualify for SMP/SPP/ShPP.

For adoptive parents, the calculation period is the 8-week period (if you are paid weekly) or 2-month period (if you are paid monthly) leading up to last payday in or before the week in which you are matched with the child for adoption. You must earn an average of at least £120 per week in this period to qualify for SAP/SPP/ShPP.

If you are concerned that you may not be earning enough during the calculation period, speak to your HR department or manager to check the dates of your calculation period and consider how you might be able to increase your earnings over this time. For example,

  • you can request to take some annual leave so that you continue to receive your normal wages, or
  • if you can do any work from home, then you should be able to do so and receive your normal salary (in line with hours worked).

If you are shielding or live with someone who is shielding, you can also ask your employer to put you on ‘furlough’ which will not affect your entitlement to pay, because you will be treated as earning your ‘usual wages’ while you are furloughed.

And if your workplace puts you at risk of coronavirus and you are pregnant, then you may be able to argue that your employer should suspend you on full pay instead of sick pay.

For more information on calculating pay when you have had a baby or are adopting, have a look at Working Families’ pages on:

And do remember even if you don’t qualify for SMP you will almost certainly qualify for Maternity Allowance.

Will sick pay or unpaid leave affect my Maternity Allowance?

Sick leave or unpaid leave will not have much of an effect on your eligibility for Maternity Allowance. It might not affect your Maternity Allowance at all, because you have quite a lot of flexibility to chose the weeks that your eligibility for MA should be based on.

To qualify for Maternity Allowance (MA), you need to have worked (or been employed) for 26 weeks in the 66 weeks leading up to your expected week of childbirth. You also need to earn at least £30 in 13 of those weeks. Employees and self-employed women can claim Maternity Allowance if they are eligible.

If you are an employee, then the time you spend on statutory sick pay (SSP) or on unpaid leave will count towards your 26 weeks of work/employment for MA, so long as you remain employed. And unlike for SMP (where the earnings taken into account relate to a fixed period in your pregnancy), you have more flexibility with MA and can chose the 13 weeks that you have earned the most to calculate your entitlement for MA. So you do not have to use the weeks that you were receiving SSP as evidence for your 13 weeks of ‘earnings’, if you can instead use 13 other weeks from the 66 weeks leading up to your due date where you were earning more.

As long have 26 weeks of work (or employment) in the 66 weeks before your baby is due, and you have earned over £30 in 13 of those weeks, you can claim MA even if you’re currently not working. 

See our page on Maternity Allowance  for more information on how your MA is calculated.

Furlough

My employer wants to put me on furlough. Do I still have a right to take maternity, paternity, adoption or parental leave?

If you are put on furlough, you are still entitled to maternity, paternity, adoption or shared parental leave. The government guidance states that furloughed have the same rights as they did previously.

And the government clarified on 24 April that being on furlough will not impact your eligibility for Statutory Maternity Pay (SMP), Statutory Paternity Pay (SPP), Statutory Adoption Pay (SAP), Shared Parental Pay (ShPP) or Maternity Allowance (MA). Your eligibility for these will be calculated based on your usual earnings (what you would have been earning had you not been put on furlough), not your furlough pay. 

But you cannot receive furlough pay at the same time as your statutory maternity, paternity, adoption, shared parental pay or Maternity Allowance.

If you receive Maternity Allowance and you have been furloughed, you need to tell the DWP that you will be receiving furlough pay and that you will let them know when the furlough pay stops. Once your furlough pay stops, you may then be able to go back onto Maternity Allowance, or you could claim some shared parental pay if you or your partner are employed and meet the criteria (this is claimed from the employer).

Read our page on furlough for more information on how the furlough scheme works. 

I’m receiving enhanced maternity, adoption, paternity or shared parental pay. Can my employer recover my enhanced pay through the coronavirus job retention scheme?

Yes – according to government guidance, if your employment contract provides for enhanced maternity, adoption, paternity or shared parental pay, your employer can claim through the Coronavirus Job Retention Scheme for this pay. 

I am due back to work from unpaid maternity, adoption or parental leave . Does that mean that I will not get any furlough pay when I come back?

No, this does not mean you will not get furlough pay. The government guidance states that your actual salary (as of 19 March) should be used to calculate the 80% pay for furlough. But if you are coming back from maternity, adoption, shared parental or parental leave then you may not have been paid during this time. In that case, you should be able to use your normal salary to calculate how much furlough pay you will receive.

But bear in mind that the government has confirmed that the furlough scheme will close to new applicants from 30 June, and you must have been on furlough for 3 weeks before this – so if you have not yet been furloughed, your employer has to furlough you by 10 June to meet this deadline.

When you discuss with your employer how your wages will be calculated while you are on furlough, you can point your employer to the following guidance:

(1)  The guidance for employers (linked above) says that ‘you can furlough employees and apply for a grant that covers 80% of their usual monthly wage costs, up to £2,500 a month’. You could argue that in your case, your ‘usual monthly wage’ refers to your normal salary before you went on maternity, adoption, shared parental or parental leave, or to the salary you would now be receiving, having returned to work, if you were not furloughed.

(2) In addition, Working Families (in Q&A with HMRC on 31 March) have also had confirmation from HMRC that you could be treated like an employee whose pay varies. This means, you could claim for the higher of either:

  • the same month’s earning from the previous year (dependant on when your employer applies to the scheme for you); or
  • average monthly earnings from the 2019-20 tax year.

If you’ve been employed for less than a year, your employer should claim for an average of your monthly earnings since you started work.

 

I am currently on maternity (or adoption or shared parental leave) but all my colleagues have been furloughed. Can I cut my absence short to receive furlough pay instead of maternity (or adoption or shared parental) pay? 

It is not clear, but according to the existing government guidance, our view is that yes, you should be able to.

You will need to agree first with your employer that you will be put on furlough: you do not have a right to be put on furlough, this is something that must be agreed.

You normally have to give eight weeks’ notice to return early from maternity (or adoption or shared parental) leave. But an employee and employer can agree between themselves to give a shorter notice period or no notice period at all. However, if you are receiving Maternity Allowance, the government guidance says that you need to give at least 8 weeks’ notice, and that you will not be eligible for furlough pay until the end of that 8 weeks.

The government has now announced its plans for the next stage of furlough. The furlough scheme will close to new applicants from 30 June, and you must have been on furlough for 3 weeks before this – so if you want to cut your leave short to go on furlough, you will need to start furlough by 10 June. Remember too that from 1 July, employers can ask employees to return to work part-time while on furlough.

If you cut your maternity, adoption, shared parental leave short to go on furlough, you may therefore have to return to work earlier than planned. But if you still have some maternity (or adoption or shared parental) leave left at the end of the furlough leave, you could go back on Shared Parental Leave (SPL) if you are eligible. You can take SPL until your child is one year old (birth parents) or one year from the date the child was placed with you (for adoption). For more detail on how to take SPL, see our SPL pages.

Benefits

I’m pregnant and I’ve lost my job – what can I claim?

If you are dismissed when you are pregnant, bear in mind that this could be unlawful, although this will depend on the overall situation. If your employer says they cannot afford to keep paying you because of COVID-19, you should ask them to put you on furlough. Please see our page on furlough for more information.

If you were dismissed in or after the 15th week before your expected week of childbirth or after the week that you are matched with a child for adoption, this will have no impact on your eligibility for Statutory Maternity Pay (SMP), Paternity Pay (SPP), Shared Parental Pay (ShPP) or Adoption Pay (SAP).

If you were dismissed before the 15th week before your expected week of childbirth or the week that you are matched with a child for adoption, then unfortunately you will not be eligible for SMP, SPP, ShPP, or SAP.  However, if you were dismissed solely or mainly to avoid your employer having to make these payments, you may still be entitled to them, but it may take a while for you to get them as you’ll have to get a formal decision from either HMRC or an Employment Tribunal

If you are pregnant, you are likely to be eligible for Maternity Allowance (MA) instead. To be eligible, you need to have worked or been employed for at least 26 weeks in the 66 weeks before your baby is due and earned over £30 in 13 of those weeks. The work does not have to be continuous or for the same employer, and you can count self-employed and employed work.

If you are already claiming tax credits, your award for these may go up if your household income has decreased by more than £2,500 compared to the previous tax year. If you get Housing Benefit, make sure you tell the local authority (council) about any changes to your income. And you should tell any organisation that pays you benefits when your baby arrives. 

If you are not already claiming benefits, you may be able to claim Universal Credit instead.

Don’t forget to check other help you might be entitled to if you claim benefits, including the Sure Start Maternity Grant (Best Start Grant in Scotland) and/or Healthy Start (Best Start Foods in Scotland).

Where can I go for more help?


This advice applies in England, Wales, Scotland and Northern Ireland. If you live in another part of the UK, the law may differ. Please call our helpline for more details.

If you have further questions and would like to contact our advice team please use our advice contact form below or call us.

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