Coronavirus pregnancy - what are your rights?

Given the ongoing spread of the Coronavirus, we are providing generic guidance for members. You can find out more about your rights during pregnancy and COVID-19 below.

As restrictions are lifted, government and medical bodies remain clear that pregnant women should be particularly careful to minimise contact with people outside their households. We’ve heard from members who have been told to use sick pay, unpaid leave or annual leave. Here’s what employers should be doing for you:

What protections do I have?

All employers have a duty to assess workplace risks and this must specifically include risks to pregnant women (at any stage of pregnancy) and new mothers. Your employer must take reasonable action to remove the risks. 

Although this obligation only applies if there is an increased level of risk at work above what would occur outside the workplace, most workplaces are likely to have a higher risk of infection than you would face in everyday life outside the workplace at the current time.  Your travel to and from work should also be considered when assessing the risk, as well as social distancing guidelines  

If your employer’s risk assessment identifies that you will face risks beyond the levels found outside the workplace, then they should act 

The first step in this process should be to consider allowing you to work from home- either in your current role, or if your job isn’t suitable, by redeploying you to a different role that is.  

If this isn’t an option, then your employer should identify anything else they need to do to allow you to work- by undertaking a risk assessment. This might mean they need to provide you with additional PPE, and ensure that social distancing measures are in place.

 If that’s not possible, then you must be suspended on full pay for as long as is necessary. This is called Maternity Suspension. This full pay should be based on your usual earnings.

Should I be working from home?

As Public Health England guidance strongly advises all pregnant women and other vulnerable groups to work from home, your employer must allow you to work from home wherever practical. You can discuss what action needs to be taken to enable you to continue to do your existing job from home or whether there is other work you can do from home.

Government guidance remains clear that pregnant women are classed as “clinically vulnerable”.  This means that you are advised to stay at home as much as possible, and if you do go out take care to have minimal contact with anyone outside your household. Your employer must continue to follow health and safety regulations and consider the risks during your pregnancy. For more Government information on health and safety at work, click here. The risk assessment process that employers should follow is described above.

Government guidance on working safely published on 11 May covers all types of work and says:
If clinically vulnerable (this includes pregnant women) individuals cannot work from home, they should be offered the option of the safest available on-site roles, enabling them to stay 2m away from others. If they have to spend time within 2m of others, you should carefully assess whether this involves an acceptable level of risk. As for any workplace risk you must take into account specific duties to those with protected characteristics, including, for example, expectant mothers who are, as always, entitled to suspension on full pay if suitable roles cannot be found.

If there is a health and safety risk, that cannot be mitigated, you should be suspended on 100% of pay. However, if you are furloughed because your employer has been affected by lack of demand, but there is no health and safety risk then you should be furloughed on the same terms as other colleagues who are not pregnant. 

I am 20 weeks’ pregnant and I was sent home last week and paid on Statutory Sick Pay. My employer is putting my colleagues on furlough. Am I now entitled to furlough?

Your employer should only pay statutory sick pay if you are off sick or you or a family member are self-isolating because of coronavirus symptoms. You can visit the government website here for more information around statutory sick pay. 

It may be pregnancy discrimination if your employer refuses to provide furlough during pregnancy and insists that you take unpaid leave or start your maternity leave early or if your employer pays you Statutory Sick Pay while your colleagues are being paid 80% on furlough. 

Be aware that if your employer wrongly puts you on statutory sick pay rather than furlough this could affect your entitlement to statutory maternity pay (SMP).  

 If you become ineligible for SMP and instead receive Maternity Allowance (MA), this could affect your universal credit entitlements. If you are in receipt of universal credit, and receive MA, then you could receive less universal credit, because MA is included in universal credit calculations, whilst SMP is partially disregarded. 

Your employer must continue to follow health and safety regulations and consider the risks during your pregnancy. You can read more Government information on health and safety at work here. If your job is in a public-facing role or you work in a large office and have an increased risk of being infected, your employer must make reasonable adjustments such as ensuring you can work away from the public or in your own office and that you can follow the Government guidance.

If they are not able to ensure you can work in a safe environment away from others your employer must provide suitable alternative work (on the same terms and conditions) such as working from home. If there is no suitable alternative work, adequate provision cannot be put in place to mitigate the risks, and you are not able to do your job from home, your employer must suspend you on full pay. Failure to suspend you on full pay if there are increased risks of infection at your workplace may be pregnancy discrimination.

Alternatively, your employer can put you on furlough and claim 80% of your pay under the Coronavirus Job Retention Scheme. You do not have to have used up all of your annual leave before being furloughed.

Can I be dismissed for refusing to come into work during the pandemic?

It is important to keep in touch with your employer so that they are aware of the reason for your absence and so that you are not regarded as absent without leave.

The latest government advice says that as social distancing restrictions are lifted pregnant women must be particularly careful to minimise contact with others. If your employer can minimise your contact with others, for example by giving you your own office or providing you with PPE this may allow you to go into work. However, if your employer can’t offer safe work, or suitable alternative work, or allow you to work from home then they must suspend you on full pay.  

If you go into work and you consider that you are in serious and imminent risk of danger to your health and safety you are protected against dismissal, detrimental treatment and loss of pay if you leave work in order to protect yourself. Contact Community for advice or support from our legal officers if you are in this situation.

This could include a situation where you believe that a colleague or someone else in your workplace has coronavirus symptoms or has been in contact with others with Covid-19.

You should tell your employer why you are leaving your workplace so that you are not considered to be absent without leave and explain why you believed you were at risk.

If you need advice or legal support, please contact Community’s service centre here. 

Will my Statutory Maternity Pay be affected if I am put on furlough or if I am on sick leave? 

We welcomed the government’s announcement that workers normal earnings will be taken into account when calculating statutory maternity pay (SMP). This means that if you are on furlough your statutory maternity pay will not be affected.  

 However, unfortunately, if you have taken sick leave or unpaid leave as part of the period that is used to calculate your statutory maternity pay then it will be calculated based on these lower amounts. If you received statutory sick pay (SSP) during all the weeks used to calculate your average earnings for SMP you will not have earned enough to qualify for SMP, and you should claim maternity allowance instead. If you only received statutory sick pay for part of the period used to calculate your average earnings, you may be able to claim SMP at a reduced rate.  

We are asking government and employers to:

– Act now to discount parental leave periods from calculations that deem how much financial support will be received by the self-employed. The government has said that freelancers who have taken parental leave over the last 3 years will not have that period discounted from the earnings averaged, particularly discriminating against women. Any parental leave periods should be removed from averaging.

– Ensure that pregnant women who have been advised to stay at home by the government are suspended on full pay with no detriment to their employment, or at the very least, furloughed. Many are being forced to use annual leave, sick leave or unpaid leave.

– Immediately relax the three-month limit on bringing a discrimination claim against employers.

– Create emergency time-limited changes to allow people to take immediate leave to care for their children, at full pay, and reimbursed to the employer by the government as they do for maternity leave. This should apply to all workers including those on agency or zero-hour contracts, freelancers and the self-employed.

Further information and resources on the impact of COVID-19 on pregnant women at work or on maternity leave:
ACAS
Maternity Action
Pregnant then Screwed

Actions:

Read the letter our General Secretary, Roy Rickhuss CBE wrote to the Prime Minister on this issue.
Sign the petition to ensure no one loses jobs or pay because of school closures.
Write to your employer (template letter).

For more information or support please email servicecentre@community-tu.org or call 0800 389 6332.

If you are having trouble securing the support you should be getting from your employer or have any stories to share, please email Lauren Crowley, Head of Equalities at equalities@community-tu.org

Thank you to Maternity Action for providing resources and information for our members on this issue.

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