Northern Ireland is currently in a 6-week period of restrictions that will last until 6 February, and be reviewed along with other lockdown measures on 21 January 2021.

From Friday (8 January 2021), there will also be a legally enforceable order for people in Northern Ireland to stay at home to stop the spread of Covid-19.

There is also expected to be a requirement for all employees to work from home if they can.

Where the employees are required to work away from their home it is expected that there will be a legal requirement for all employers to conduct a risk assessment.

It has also been confirmed that pre-school education settings, primary and post primary schools will be required to provide remote learning to pupils until the half term break in mid-February.

On the same day as these announcements, the Check which employees you can Furlough Guide was also updated with additional information about employees who are unable to work because they have caring responsibilities resulting from coronavirus (COVID-19).

Some employees may now struggle to balance their caring responsibilities and work.  We have therefore set out below some options for Members to consider.

1. Can the employee work from home? Is this feasible?  If required, you should consult with the employee and consider, where possible adjusting their working pattern to suit their caring responsibilities.
2. If the employee cannot work from home, consider if can they attend the workplace on different hours or reduced hours around their caring responsibilities. You will not want to encourage employees to lodge formal requests for flexible working but instead try and agree informal / temporary arrangements that work for both the business and employee.
3. If the employee cannot work from home or attend the workplace for any of their hours, the business can Furlough them. Whilst there is no right to be furloughed, Members should carefully consider reasons for not to doing so.

The updated Furlough Guide now states:

‘Your employee is eligible for the grant and can be furloughed if they are unable to work, including from home, or working reduced hours because they:

• are clinically extremely vulnerable, or at the highest risk of severe illness from coronavirus and following public health guidance
• have caring responsibilities resulting from coronavirus (COVID-19), such as caring for children who are at home as a result of school and childcare facilities closing, or caring for a vulnerable individual in their household.’

1. Consider if the employee can use annual leave? Employees may have carried over more holidays from last year by virtue of the Working Time (Coronavirus) (Amendment) Regulations (Northern Ireland) 2020 that allowed for up to four weeks (pro rata for part time staff) to be carried over into the next two leave years. Employees on furlough can also use holiday and if so the business must ensure they top up the grant to the employee’s normal rate of pay.
2. Consider if the employee wants to use Parental Leave which is unpaid. If the employee has 1 years’ service they can take up to 18 weeks’ leave for each child until the child’s 18^th birthday. Four week’s Parental leave can be taken for each child, each year but business can agree that more is used.
3. The employee may say that they need the Time Off as Dependent’s Leave, which again is unpaid. Employees are legally permitted a reasonable amount of time off to deal with an emergency involving a dependent. There is no definition of what is a reasonable amount of time off and, depending on the circumstances, it maybe arguable that the full period for caring responsibilities is a reasonable period.

We do recommend that Members consult with their employees and try to agree a solution that works for both.

Members should be aware that there is a potential for indirect (or direct) sex discrimination claims given that more females have caring responsibilities.