Managing Absence in the Backdrop of Covid-19Posted in : Webinar Recordings on 22 October 2020
Caroline McEnery, The HR Suite and Rolanda Markey, Legal Island, will discuss HR issues around managing absence that arises during (and also because of) the Covid-19 pandemic, e.g. absence due to the need to self-isolate (including where recommended through test and trace systems); cocooning employees; employees reluctant to return to work for fear of infection, etc.
Rolanda: Good afternoon, everyone, and welcome to our webinar with Rolanda Markey from Legal-Island and Caroline McEnery, the managing director of The HR Suite. And you can see Caroline on your screen looking lovely. Hello, Caroline. How are you?
Caroline: Hi, everybody.
Rolanda: Just a very short introduction on Caroline. Caroline is a past member of the Low Pay Commission, and she's also an adjudicator in the Workplace Relations Commission. She has completed a Master's in Human Resources through the University of Limerick. She is CIPD accredited as well as being a trained mediator.
She has worked across the various areas of human resources for over 20 years in the Kerry Group, and in the retail and hospitality sector where she was the operations and HR director of the Garvey Group, prior to setting up The HR Suite in 2009.
She speaks widely and writes articles and papers on thought leadership in relation to the future landscape of human resources, and the challenges and opportunities that presents for employers and employees.
In today's webinar, Caroline will discuss issues around managing absence against the backdrop of COVID.
We have already received quite a lot of questions and Caroline has absorbed them into her presentation this afternoon, so hopefully many of the issues that you have will be answered.
We do have a question box there, so if you have any questions, send them in. If we have any time, we will take some of those.
Just before I pass over to Caroline, I just wanted to remind you about the Annual Review this year, which is on the 25th and the 26th of November. Obviously, it's online. We just planned that way, and as a result, it's over two days, which means that you get much more value for your money this year.
You will see Caroline at the Annual Review. She'll be speaking on remote workplace investigations and disciplinary hearings, something of which she has obviously garnered an awful lot of experience lately.
So this year's Annual Review is jam-packed full of employment law stuff. It's been a very busy year for employment law, perhaps both directly and indirectly in a way related to COVID. So you'll find out more about that in the follow-up email.
This session will be recorded, and if you have to leave or if you miss a bit, then it will be sent out.
Just finally, before I pass over to Caroline, can you all just make sure you've got your sound settings correct, that you've selected the correct output device so that you're hearing us okay?
So, Caroline, over to you, managing absence.
Managing Absence – General
Caroline: Thanks, Rolanda. Good afternoon, everybody. Delighted so many of you could join us live this afternoon. And as Rolanda said, you'll also get the benefit of the recording.
I suppose this has been a very topical area, hence why we decided to cover it off today. And I'm going to cover as many of the questions that you submitted in advance, which I used to help with the presentation. And I'm also going to cover additional areas that have been really topical for us in The HR Suite that we've been helping clients with in this area.
So, during COVID, we've been doing a lot in relation to specific advice and expertise. We've seen that people are really using this as an opportunity for planning and up-scaling, particularly things like remote training for managers, performance management, mental health training, etc. So, again, we've been helping clients with that, and just proactively providing the information.
As Rolanda said, at the Legal-Island Annual Review, I'm covering investigations. It's an area we specialise in as a business. We assist companies with outsource investigations, and obviously they're being done remotely in the current environment, and mediation, and other areas as well.
So, without further ado, I want to move on, and we're going to start today's session.
And the starting point, I suppose, for me, would be to recommend and advise that you review your COVID absence policy, and your policy in general around COVID. Some organisations have two policies, a policy in relation to COVID in general and then they have a policy around absence. So it's up to you to decide whether you want to have one or two. Either way, I think it's really important that you have a policy in place.
We know, based on the amount of case law examples, that we always see it coming back to, "So what did to say in the contract of employment? What did it say in the staff handbook? What did it say in the policies?" And because of COVID is something that we couldn't have pre-empted, we need to make sure that we now tailor our absence policy to reflect this very, I suppose, specific challenge and all of the follow-on queries that it brings with it.
So my starting point would be to ensure you do a comprehensive policy. We've given you some detail here in relation to what you might consider included in it. For example, feeling ill at work, what do they do? Feeling ill before they come or after, while they're at home. Short- and long-term absence, because I suppose there are so many reasons now why people could be absent linked to COVID or themselves, or in terms of their family. Working from home arrangements and what to do in relation to ask if they were feeling unwell.
Managing Self-Isolation Due to Covid-19
Self-isolation, notification, and how you manage that notification piece. That has actually presented a lot of challenges for companies where people . . . two different scenarios have arisen.
One is where people are reluctant to notify their employer that they actually have COVID or they've been notified as a close contact, and instead they're saying they're unfit for work because they're saying that the employer has basically breached their GDPR by over-communicating in terms of information to do with their personal data. So, again, we need to develop a system of notification that respects, trust, and yet respects the fact that this is a notifiable disease.
The other piece around notification is I would up-scale the people who they ring into to say, "Look, I'm a close contact. What do I do?" or, "I actually have been confirmed, or I'm waiting for a test result". So that notification person, I think, should be . . . rather than the normal practice, if you're not available to come to work, it might be you contact your manager. Maybe assign designated people in terms of notification.
What to do about unexpected absences, we're going to cover that off in more detail in today's webinar, and I think it's important to reflect that in the policy. The same as travel, proof of absence, data protection and GDPR, honesty, and in relation to potential breaches of the policy.
A lot of people would talk to me about breaches in terms of the policy. And the implication, I suppose, for breaches of the policy in terms of what if somebody goes to, for example, a house party, which is prohibited in the current guidelines? Is that something that can be dealt with in the work environment? Again, it comes back to, "Have you clearly, first of all, made the staff members aware of the implications if they were to breach the wider guidelines, and also in relation to the public health guidelines and actions?"
The other important consideration to include in the policy is that all employees have a duty of care to their fellow employees. And under the Health and Welfare at Work Act, they have an obligation to ensure that they facilitate a safe work environment. So, again, breaching policies, etc., would be an issue in relation to that.
So, when you drafted your policy, it's important that we circulate that policy to all staff. We do a toolbox talk, or we go through the policy with them, ideally in small sessions over Zoom or whatever other appropriate means you may have.
And ideally, you either . . . a lot of you will have some form of an HR system that they tick it off to confirm they've read and accepted it, or alternatively you would have some form of ensuring that they understand that this form is now part of their terms and conditions. Ideally, sign-off is the best form. I appreciate that might not be possible for everybody, but, again, you don't want there to be any ambiguity if somebody breaches the policy, or if there's any issue in relation to the policy, that we're able to address it.
Another consideration around this is if you have a sick pay scheme in place, or if you have an absence policy that would trigger a performance management process to commence, I think you need to take into account COVID to be external and separate to that in my view, unless you have a very specific reason as to why you would link it.
So I think particularly when somebody is confirmed as a case and for the absence period associated with a confirmed case, how we manage that, or indeed, is there a close contact?
So, again, there are just some considerations around your policy. And the big thing we are looking to achieve is clarity and also a guideline then that we can treat everybody consistently so we can ensure that if we're making a decision, there won't be any unfair treatment allegations because everybody is going to be treated in line with the policy.
Managing Different Types of Absence
So, if I move on then to our next slide, there are, I suppose, lots of different types of absence that we're dealing with at the moment. I'm going to touch on the most typical ones and, again, looking to maybe encourage you to put in place a protocol around how it would be managed. Again, you can tweak it to suit in line with your own company practice.
So, for somebody, I suppose, who is a confirmed case or somebody who is a close contact, etc., be clear in relation to the length of time that they need to remain in self-isolation and medical certification that's required in terms of proof of absence. They need a fit for return to work cert, and they need to complete the pre-return to work form.
Again, I think it's important to give the rest of the staff confidence in relation to how you're managing this, that they see that you are following a protocol in relation to managing the return equally as important as the absence.
The employees then who may be required to self-isolate, again, in terms of their return to work, we need to ensure that we're getting confirmation from them in relation to the absence.
Again, for anybody who might be . . . after travelling abroad or planning to travel abroad, it's important that we, again, address that. We've a lot of employees who, especially now in this current phase of lockdown, have requested, "Look, can I go back to Portugal where I'm from? I haven't visited my parents in a long time. Can I go for four weeks and I'll come back and quarantine for two?"
I think we have to be very empathetic in relation to those kinds of requests. Again, ensuring that the self-isolation period is attached to that before their return is important.
So, again, have clarity in relation to your policy, and also clarity in relation to the requirement for people to notify you of any potential risk of illness, close contact, or if they need to self-isolate, or if they're planning to travel or indeed return from abroad.
Remote Working During Covid-19 Pandemic
The next slide, then, I'm going to look at the working from home piece, and I suppose why we're covering that under an absence is, for some people, they've said, "Look, I'm nervous about coming into the office", even though they might be an essential service, which are the only people who are supposed to be working in an office at the moment. But they might be genuinely nervous. And I think that's something we really need to take into account, that this isn't normal times.
And for a lot of people, COVID-19 has really instilled a lot of anxiety, and stress, and worry that's very genuine in people. So a lot of people have additional requests around working from home. Obviously, working from home in the five-stage levels that we're dealing with has been encouraged, and at the moment it's a requirement unless, as I said, you're an essential worker.
So, again, in working from home, make sure you have your policy and consider your risk assessment. Have you done an ergonomic review to make sure the person has an appropriate desk, an appropriate chair, the appropriate technology, etc., so that there's no risk around that in terms of back pain, back injury? Which we're seeing already been raised as a concern for some people.
I suppose the working from home during self-isolation, again, we need to address what self-isolation is for. So, for example, the example I gave you of somebody who might say, "Look, I want to travel abroad for four weeks. I'll self-isolate when I come back, but can I work from home for those two weeks?" again, if they can work from home, I would say you would facilitate that.
Also, you're flagging the importance around GDPR and how they're managing data at home, etc. Again, the importance of doing regular check-ins and assessing people's well-being, because I think we can't underestimate the stress and anxiety it's causing for a lot of people.
Unfortunately, we're talking so much about working from home where we sometimes forget that it's not suitable for all employees in terms of their work or in terms of the setup they have at home. So we've been hearing about a lot of employees who are working with their laptop in their bed because they're working out of a bedsit where they have other people sharing accommodation with them, etc. So, again, it's something to look at in terms of managing absence, and suitability, and that wider working from home and remote working area.
Parental Issues During Covid-19 Pandemic
Then, if I move on, I suppose the other types of absences are parental responsibilities. And we appreciate that there's been legislation drafted, but it realistically will be in spring of 2021, I would expect, before we see anything come to light. It could be sooner, but I would be surprised, but delighted.
I suppose the parental responsibilities occur . . . it might be a case that the school has sent the children home. There might be a positive case, and there might be very little warning. It might be a case that the child . . . even though it might be an ordinary illness, they want to take the child out of crèche.
So, again, I think it's really important that in advance of any of that happening, you're chatting to your staff to say, "Look, we appreciate these kinds of things will happen, and we're going to have to look at it on a case-by-case basis", in terms of whether you give the person flexibility in terms of their hours of work while that happens, whether you allow them to work from home, or whether there are different other leave options available to them.
My advice would be to look at that on a case-by-case basis depending on the age of the child, depending on the parent's preference, depending on the options and the scenario that's available. I don't think we can say, "Let's just make one decision now. If this happens, you'll have to take holidays", when sometimes it might actually be more appropriate that it's force majeure, or alternatively we may have flexibility that the person can work later that evening to get the work done.
Anything that we can do to be accommodating and empathetic at this time, I think, is very important, because no doubt about it, it's never been more true that people may not remember what you said, but they will remember how you made them feel. And I think for managers now, being understanding and giving that leeway, you'll get it back in droves.
So then if we move on from there, force majeure I've touched on. And force majeure is something that we've had a lot of people come back and ask in relation to, "Am I entitled to force majeure because my child was sent home from school, or actually my child has a runny nose and I can't send them in?"
So I think we have to, I suppose, take the legislation in the spirit that it's intended, and it's urgent family reasons where the person is indispensable. Previously, most people had a back-up plan. They had grandparents, they had a babysitter, they had a neighbour, they had somebody. But in the current lockdown situation, that's not there. So I think you'd have to really look at that.
Again, it's 3 days in 12 months, or 5 days within 36 months. And, again, that is being reviewed in terms of covering things like children and absence from school, etc.
Again, the criteria, urgency, immediacy, and the indispensability, is something, as I say, in light of COVID I think you'd have to be much more accommodating than maybe previously due to the situation that we're in around lockdown. So, again, be aware of that.
There's lots of case law as well to show you to really consider the application on a case-by-case basis, and to remember it's when the person is in that situation, whether they thought it was urgent and it was immediate, and that they were indispensable.
If it turns out after that there wasn't as much of a risk as expected, etc., it's what happened in that moment when they made that decision to, for example, drop everything to collect the child or do what they needed to do. That's what's most important in that scenario and, as I say, in the spirit of the legislation.
If we move on then to our next slide, this is the bill that I mentioned that is being proposed at the moment in terms of sick leave and parental leave. It's currently in consultation stage. It's not yet enacted and it's something I think we're going to hear more about early in the new year, if not before.
So then I'll move on to the next slide. Rolanda is helping move on the slides and she's like "Roll it there, Colette" on the "Late Late Show". So thank you, Rolanda. You're doing a great job pre-empting.
Absence and Equality Issues
So the next area I suppose I wanted to touch on was the equality grounds, because it's something that has come up a lot in relation to some of the key grounds, and particularly around family status and disability. I want to talk to you about both of those.
I suppose the importance of ensuring that an employer can't treat an employee any less favourably on any of these grounds has always, I suppose, been instilled in our policies, our procedures, and our practices, and ways of working.
I suppose at the minute it's really important that we don't disadvantage or treat somebody less favourably to do with the fact that they may have childcare commitments, or indeed if you have somebody who has a medical illness that could be classified as a disability in light of the legislation in relation to COVID-19.
And these are particularly important if you were making decisions, for example, in terms of who you might lay off. In the current scenario, there are a lot of layoffs, restructuring, redundancy, etc. And, again, it's really important to show that you're taking all reasonable steps to accommodate people and you're trying to be fair and objectively justifying any decisions that you may make.
The other ground that's come up a lot is the area of age. Again, the nature of the fact that you may have some people who are cocooning, which I'll cover later in the webinar, in relation to the age, it's really important that you don't make any presumptions. Again, we're not disadvantaging or discriminating against anybody in relation to their age in decisions that we're making.
And I suppose a key overarching element to all of this is the importance of consultation and engagement with our employees. I think if you do that very proactively and in relation to disability, that you get medical advice, and then do the consultation and the engagement, you always end up in a better process once you ensure your paper trail is also in place.
But consultation and engagement is crucially important always to ensure that there isn't any issue about treatment not being fair and consistent. And if somebody raises the issue, then at least you have the opportunity to address it as you consult with them.
Making Reasonable Accommodations for Disabled Employees
I'm going to move on to the next slide to talk to you about reasonable accommodation. And I suppose this whole area is really important because we have a lot of people for whatever reason . . . it might be the fact that they're really stressed and nervous and have a phobia at this stage in relation to COVID-19 and the risks associated with it. It may be that you have underlying health conditions and the workplace is particularly stressful, or concerning, or actually medically is deemed inappropriate for you.
Obviously, we're doing primarily remote working at the moment with different types of jobs. For example, if you work in retail, if you work in childcare, if you work in nursing homes, etc., obviously still require attendance at work as people are designated essential workers. So it's really important you get a medical assessment by the company doctor.
I'd always advise that it's an occupational health doctor rather than a GP because, again, they're going to be trained in relation to making that assessment in a work-related context. And the likelihood is they're going to consider changes required to accommodate the employee. There may be no changes required and they deem the person fit as is, or they may deem the employee not fit for work.
I suppose if accommodations are required, it's really important that they are put in place. And they may be temporary until the pandemic subsides, and it's important to agree the temporary nature until that review is in place.
Again, a lot of employers would say, "Okay, Caroline has asked to do specific arrangements, be able to care for somebody because of COVID-19, doesn't have childcare arrangements". But you might say, "Well, look, this isn't something I can continue to accommodate". But you might decide that you're accommodating a shorter period of time.
It's always important to put a review process in. Specifically, here, we're talking about reasonable accommodation in line with a health condition. So that's why you have to take the doctor's assessment into place, and you also have to ensure that you engage and consult with the employee. It's even more important, as a result, that we do that.
I'm going to move on, and this slide, I suppose, is just highlighting the importance of engaging with the employee in relation to the reasons as to why they cannot come back, and what we can do either to help facilitate their return, look at alternatives, or alternatively potentially consider how we manage their absence going forward.
It's highlighted concerns in relation to some people now already who . . . businesses have closed or some elements of businesses have closed, and they've come back and said, "Look, actually I'm happy to go on the PUP payment, and if somebody else wants to work, I'm happy with that", even though there's work available for them.
So, if there's work available, the PUP payment is not the solution. The PUP payment is only in place if the person has no work available, i.e. that they've been put on layoff. So it's important just to remember that that's the specific purpose of the PUP payment.
There might be other types of leave, though, that you do consider for them depending on why they don't want to return. Again, the "why" is really important so that you can consult and engage with the employee, and again, without any of this, the consultation and the paper trail are crucial within it.
So particularly that layoff piece, just to remind you of that, because I do think that's coming up a lot already this week based on many more businesses needing to close. So just be aware of that.
Refusal To Return to Work
Then I want to move on in terms of the failing to return to work. I suppose you're hoping that this won't happen, but we just need to be aware that if you have employees who have been out for a while, and they're not engaging, or they haven't given you a valid reason in relation to returning, it's important that we really do engage with them.
And rather than if somebody resigns, again, we're engaging with them to find out why, remind them of the absence policy, ask them for alternatives or suggestions. Again, consider their reasoning so that you can consider if you need to keep their job open for them. Do you need to do a risk assessment? Do you need to consider a medical assessment, etc.?
Because most people are not going to go on unauthorised absence unless they feel potentially stressed or worried to balance maybe family commitments with work, and are afraid that the job may not be kept open. It might be somebody who's older and feels that their underlying health condition means that they're not going to be in a position to come back safely.
All organisations now have done an excellent job in relation to the government return-to-work protocols and the processes around that. So, again, just make sure you engage. Again, just avoid any risk at a later date, because we've had people come back and say, "Well, look, I feel the fact you didn't engage with me means that my job isn't going to be there. And things have moved on now, and you're all using Zoom over the last couple of months, and I feel I'm way out of touch and that I'm actually not needed anymore".
So, again, you want to try and avoid any of those types of scenarios. And anybody who's out sick on any form of a long-term basis, we need to continue to engage with them, particularly now more than ever from a mental health perspective in light of the current circumstances.
Importance of Keeping Records in Managing Absence
I'm going to move on. I suppose the paper trail, the paper trail, the paper trail is something that we always remind people of in relation to managing absence, and how we ensure that we're being empathetic, understanding, accommodating, and fair is really important.
There was a recent case where a lady who was alleging that she was discriminated in relation to her race took a claim and said, "Look, I didn't get sick pay, but two years ago, a colleague who was out sick did. So, therefore, I feel I'm being discriminated against because of my race". And the company couldn't show any objectively justified grounds why they paid one employee and why they didn't pay the other. And in the absence of that, the company were deemed to have discriminated against her due to her race, and she got an award of €20,000.
And that's just an example of where the company may have used their discretion in the past, and not had a paper trail, yet may have said, "Look, we have no sick base scheme. It's at the discretion of the company", but, again, having to objectively justify one reason over another.
Again, I think that paper trail, in relation to that example and many others, is really important. So consider the paper trail in relation to unauthorised absence and the importance of engaging with staff.
Where that has also come up a lot is where you've had somebody who potentially went back to their home country, and you haven't been in a position to be in touch with them, but hope that they will return. Again, the importance of showing that you've made every effort, and that you've looked at reasonable accommodation, that you've managed the temporary changes in terms of facilitating working from home or changes to hours of work. And in terms of sick leave, you've considered your policy around sick leave, and also the medical certification or the potential need for an occupational health assessment, also.
Then, for managers, there's a real, I suppose, emphasis now of trying to facilitate employees and be flexible where we can in relation to absence, but looking at it from a business perspective on a case-by-case basis. And in making the decision, showing objectively justified grounds and trying to be as fair as possible with people in that regard.
I do feel at the minute that managers are definitely finding the stress and pressure of all the additional people management responsibilities is heavy on their shoulders. So I think providing training for managers has never been more important in relation to managing remote workers, or indeed managing the different types of scenarios that we've covered off in today's webinar.
So, again, flexibility in terms of balancing the need for the employees and the business on a case-by-case basis, but still remembering the precedence you may be setting based on the example that I gave you there about that case.
Explore reasonable accommodations where somebody, for example, working from home says, "Look, I really need a standing desk because of my back". Then they're entitled to get a standing desk once we're happy that the risk assessment dictates that. Again, the importance of reasonable accommodations, especially on the grounds of disability have been highlighted, are really important.
I suppose the importance of drafting your policy, both your wider COVID-19 policy and also the particular absence-related policy. So, again, there's clarity in relation to payment and clarity in relation to how you're going to manage that, and then the importance of communication and consultation. So, again, you're not making the decision to just say, "Sorry, you have to be at work, and that's it", that you're showing that you are consulting, you're trying to be flexible, and you are communicating, and then you're recording the absence and the paper trail.
My advice, as I mentioned, is if you do have an absence bonus or an absence criteria that goes down the road of performance management, that you would consider excluding people who have been confirmed with the coronavirus or those that are required to self-isolate. I think we have to expect that this is an exceptional absence, and it shouldn't necessarily disadvantage somebody. And I see a lot of companies are taking that advice in relation to that.
So I suppose to conclude, and I'll pass you to Rolanda who is going to deal with some of the questions that you've submitted during today's webinar, we'd be delighted to assist anybody in relation to the wider COVID queries that you may have. We provide hourly rates as well as bundle of hours, training, etc. And we did a webinar yesterday which is available from our social media and our website, etc., if any of you are interested, just on the wider response to COVID and the other topical areas.
I'm really looking forward to the Legal-Island upcoming conference. I suppose, for me, it's something that right throughout my HR career, since this has been happening, I've never missed one of the Legal-Island conferences because I think it's really time well spent. And I think at the minute where we can be really busy being busy, it's never been more important to press pause and use this opportunity to take the learnings and the best practice by attending the conference.
And as Rolanda said, I'm covering the area of remote investigations, both grievance and disciplinary, and my intent is to cover lots of really good tips, and best practice, and different challenges that we're experiencing, and how we can advise you to overcome them, because business still has to continue and investigations still have to happen so that we're showing that we're dealing with issues in a timely way.
So I'm going to hand you over to Rolanda maybe to take you through some of the questions, if there's one or two, Rolanda, you'd like to cover off before . . .
Rolanda: Yes. Thanks very much, Caroline, for your time. Just time for a few questions. Caroline's got to shoot off for another meeting. Such is the life of a busy HR consultant these days.
Seeking Evidence of Need to Self-Isolate
Just a couple of questions about evidence. So, first of all, if somebody says, "I've been notified through track and trace", or whatever tracing system, "that I've come into contact with someone who has tested positive", can you ask them for evidence of that?
Caroline: I suppose you can. But for most people, we want people to be reporting and we want people to follow whatever the system is. So, again, we can easily incorporate into our absence policy, "Look, you need to take a screenshot of the message that you get, and that will suffice", for example, or, "You can give us something".
So, in other words, you're making it really straightforward and simple for them. You're not saying, "Look, I need you to get a letter or I need you to get something additional". I would say a screenshot, which they do get, would suffice. Again, build it into your policy.
And I suppose the more and more we're going to see people who are identified as close contacts, or indeed those that are waiting to get results, etc., the more we need to be clear on the obligations of those people to be compliant. So I think that's something you can do.
Evidence of Travel Plans During Covid-19 Pandemic
Rolanda: Okay. And if somebody has travelled abroad, you mentioned that earlier about somebody wanting to go back to their home country to visit their parents, and doing their self-isolation when they return. Can you ask for proof of the date that they returned? So perhaps when they pass through the airport, to remember to get a stamp or something like that, to check that they have them isolated for the required number of days?
Caroline: I think, again, one of the key things is you want them to tell you that they are going away, and you build that in. We've had many incidents where people haven't communicated that they've been working remotely from home. They travelled, and basically they haven't notified, which has become an issue for employers.
So, first of all, I'd make it clear they have to tell you, and second of all, I would say that you could build it in, again, to your policy to say, "Look, we're improving your travel abroad on the basis that you give us flight confirmation details. And we only want the flight confirmation details to ensure that you quarantine for the appropriate days and you self-isolate".
Again, it's back to health and safety. All of our decisions are being guided by our obligation of health and safety to our team. And many organisations have a Team A, for example, and a Team B to facilitate business continuity for businesses that are opened.
Same concept applies for people who might be travelling abroad and that are travelling back. We want our team to feel very confident that we have all measures in place to protect them if and when we start to get back into the office over the coming Phase 5. That won't be happening for most businesses unless they are essential services, but more longer term than that, I think that's a very good point.
Duration of Force Majure
Rolanda: And just a quick question on force majeure leave. Can it be taken in consecutive days? So, for example, someone said, "My child is in hospital for two days", can they, too, be considered force majeure, or only day one?
Caroline: I think, again, you have to take it on a case-by-case basis. The idea of force majeure normally would have been fight or flight, so your presence was indispensable. If a child in this current scenario needed to go into hospital, and with the huge restrictions available only one parent can go in with the child, and they're very strict in relation to that, I think if it was an unexpected need for them to go into hospital, you probably would consider the second day as a potential. For the current circumstances, it would be virtually impossible for them to get a replacement person, and I don't even think the hospital would allow it.
But again, that's the benefit of the consultation piece, to have the conversation with the employee to understand why they've applied for the force majeure for the two days. First day, if it's an unforeseen, unexpected, would absolutely, but the second day, I would say consult with them and understand.
And remember the point I made around . . . remember it's when the person made that decision. So, if it's a case that they felt, "Well, nobody else can stay in the hospital, only me", and it is indispensable, and it wasn't a planned surgery, or it wasn't a planned routine need for the child to get a procedure done, and it was, for example, a COVID-related issue, and they were emergency, and they were needed, I would say you would likely grant that.
Rolanda: Okay. And one last question, Caroline, because I know you have to shoot on. I think we could spend another hour, to be honest, dealing with questions in this particular subject area.
Pandemic Unemployment Payment and Illness Benefit
But you mentioned earlier when you were looking at managing employees who cannot come back to work and who maybe want to go on to PUP scheme. If someone is already on the Pandemic Unemployment Payment, and they subsequently test positive, and I suppose are ill as a result, they can't obviously claim the PUP and the Illness Benefit, so what would they be? Would they still be on the PUP scheme, or would that be cancelled and they'd be on sickness benefit? Particularly, I suppose if you have some occupational sick pay as well as then the COVID Enhanced Illness Benefit, what would they be on then?
Caroline: So, if it's the case you're on PUP, that means the employer has said, "We've paused your contract of employment, so therefore we have no work for you for the next six weeks. Your contract is paused. You're on layoff". So, if you're unwell while you're on PUP, that's up to you to decide, I suppose, in terms of applying for the Illness Benefit, etc., if it's more for you.
Because the payments in relation to PUP and the Illness Benefit are applied for by the employee, so I would let the employee make the choice in terms of eligibility, in terms of which they feel they're entitled to, etc. But it's not the employer who makes that decision on the basis that you've paused their contract of employment until the end date that you say that they're due back.
So, for most employers at the minute, for the six weeks that the lockdown of Level 5 is on, for example, in hospitality, the contract is paused until 1st of December, or the day that they're due to return. So I would let the employee make that decision.
Rolanda: Okay. So, in that perspective then, they could be on the Illness Benefit for a period, but if work was still unavailable, then they could go back onto the PUP scheme in a sense, because if work is still not available, then they're still laid off after they're . . .
Rolanda: Okay. Well, look, thank you all for those who've sent questions. And we will make a note, also, and we'll try and get some of our writers to address some of the questions, because I know it is particularly a tricky subject area, and there's lots more we could say about it, but we are restricted by time.
Caroline, thanks, again, for your time, and looking very much forward to seeing you at the Annual Review. Obviously, it's great normally seeing everybody in person, but it's still good to see everybody online, so I look forward to seeing you there.
Thanks very much, everybody, for your time today, and we'll see you next time. Bye-bye.
Caroline: Thank you.
This article is correct at 22/10/2020
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