The recent reopening of schools across Ireland was one of the first measures to kickstart the nation back to some form of normality. Since pupils of all ages have been allowed to return to school, parents have also been able to gradually return to work. However, with many children already having been sent home after outbreaks in schools the next puzzle piece in the coronavirus jigsaw pertains to parental rights where employees must keep their children at home because those children are self-isolating. This is usually after someone in their class has tested positive for the virus and the HSE advises any close contacts to restrict their movements for 14 days.
The first issue that will tend to arise is the parent will receive a notification to pick the child up from school. This type of short-notice emergency absence will be covered by the force majeure provisions in parental leave legislation. Force majeure is a short-term paid period of leave allowing an employee to deal with an emergency situation involving a family member.
The conundrum for staff and employers is how to treat longer periods of time off to care for a child who is self-isolating. The entitlement to force majeure is limited to three days in any one year or five days over three years. This is clearly not suitable for a fourteen-day period of self-isolation.
Another ambiguity exists for working parents as unless they themselves test positive or receive medical advice to self-isolate, they are unlikely to benefit from a company sick pay scheme while they take time off to mind their child. Likewise, working parents must receive medical advice or instruction from the HSE to self-isolate before they are entitled to avail of the COVID-19 Enhanced Illness Benefit social welfare payment. In many cases involving young children, this payment won’t be available as the employee simply needs time off to care for their child during the period the child is restricting their movements.
With no Government guidance on how to treat such school-related absences, employers will need to adopt a flexible approach to this problem. One solution is to allow the employee to work from home during the isolation period. Offering the employee flexible hours of work might also assist and allow both parents to share the childminding duties. Annual leave is a potential solution but the Labour Court has ruled that annual leave should only be used to allow employees to rest and recuperate from work. Employers with generous contractual annual leave policies may be entitled to ask employees to use their contractual annual leave. Employers should avoid using the statutory four weeks’ paid annual leave under the Organisation of Working Time Act to cover this particular type of absence. There may be no other option but to take an agreed period of unpaid leave either by agreement with the employee or under parental leave legislation.
Developing an ‘unexpected absence’ policy and communicating it to staff will ensure your employees understand the position your business is taking and their own leave entitlements. Broadly speaking, this type of policy could include details of how employees notify you of any such absence and how your business will treat this type of absence. For example, it could confirm that working from home is permitted or that the time will need to be taken as unpaid leave. Employees could also be made aware of any sick leave policies which may be relevant if employees themselves need to self-isolate.
The Labour Party has also recently proposed a Bill that would give employees a right to six weeks’ paid sick leave if they’re affected by COVID-19. The Bill includes a parental leave component that would entitle parents to time off to care for their child should they be sent home from school. In the meantime, your business should engage with employees to find a mutually acceptable solution to any urgent school-related absences.