This is a stressful time. It is even more stressful if you have a loved one in your household who has been identified by the government as ‘extremely vulnerable’. Many employees will be faced with this dilemma, and many employers will be worried about the effect that will have on their business.

This is a stressful time. It is even more stressful if you have a loved one in your household who has been identified by the government as ‘extremely vulnerable’. Many employees will be faced with this dilemma, and many employers will be worried about the effect that will have on their business.

Even though furlough is ordinarily to be used in a situation where an employer cannot provide an employee with work due to Coronavirus, employees may be eligible for furlough if they have caring responsibilities arising from Coronavirus, including caring for a vulnerable individual in their household. Employers do not have to agree to an employee’s request to take furlough leave.

What it really comes down to is this: does the employee have caring responsibilities towards that vulnerable person? The answer to that question will determine what an employer could do – and the answer in either situation is by no means straight forward.

What constitutes ‘caring responsibilities’?

We have always known that ‘caring responsibilities’ include caring for children who are unable to attend schools or other childcare facilities due to the pandemic; or providing the services of a carer for vulnerable individuals. We note that the term ‘carer’ has not been used though, which suggests to us that there may be some flexibility in this definition.

The particular question we have is this: does the act of staying home to limit a shielding individual’s exposure to the virus constitute a ‘caring responsibility’? For example, if a shielding individual has received a note from their doctor advising that other members of their household also isolate to reduce the risk of them contracting the disease, are those other household members eligible for furlough (if they cannot work from home)  even if they do not have traditional ‘caring responsibilities’? The answer is unclear from the guidance and there has been much debate.

So, we decided to write to the Treasury for clarification on this point and have now received the following response from Rt Hon Jesse Norman MP, Financial Secretary to the Treasury:

“The CJRS is available to all employers and employees providing they meet the eligibility criteria, and this includes the Clinically Extremely Vulnerable (CEV). The Government has striven to ensure that the CJRS can be accessed by as many people as possible. You can be furloughed if caring responsibilities arising from COVID-19 mean you are unable to work (including from home) or are working reduced hours. Examples of caring responsibilities include caring for children who are at home as a result of school or childcare facilities closing or a vulnerable individual in your household. You can be furloughed if you are unable to work due to living with someone who is shielding. The furloughing of staff through the CJRS is a voluntary arrangement, entered at the employers’ discretion and agreed by employees.”

As we suspected, the definition of ‘caring responsibilities’ should be interpreted widely. If you are staying at home because you live with someone who is shielding and cannot work from home, you are eligible for furlough. The simple act of staying at home to protect someone who is shielding appears to be enough to meet the definition of a ‘caring responsibility’ on its own.

The employee does have caring responsibilities towards the vulnerable individual

If the employee is caring for someone who is vulnerable they may well need time off to look after them whilst lockdown continues. Even outside of ‘Covid-19 times’ employees are entitled to take time off work to care for dependents in some circumstances; please see our article ‘Taking time off to look after dependents’ for more information on this (the definition of ‘dependent’ is broader than one may think).

Depending on why that individual is vulnerable, they could be classed as having a disability for the purposes of the Equality Act 2010. In those circumstances, if an employer only agrees to allow the employee to carry out their caring responsibilities by either taking paid annual leave or unpaid leave, the employer could be seen to be discriminating against the employee because of their association with a disabled person. It does not matter that the employee themselves is not disabled. An employer must make reasonable adjustments for an individual in these circumstances, and furlough leave could be seen as a reasonable adjustment if the employee is eligible.

Besides directly looking after vulnerable individuals, employers should be mindful that a member of staff who cannot attend the workplace (and cannot work from home) because they are isolating in order to protect a clinically extremely vulnerable individual within their household is eligible for furlough. This is the case even where that individual does not have what one may describe as ‘traditional’ caring responsibilities towards that clinically extremely vulnerable individual.

The employee does not have caring responsibilities towards the vulnerable individual

There will be people who are nervous about going to work because they regard someone in their household as vulnerable even if they do not have caring responsibilities towards that individual. Furlough will not be an appropriate option in these circumstances because the employer can provide the employee with work and the individual does not satisfy the exception to the rule as they do not have caring responsibilities arising from Covid-19.

This is more difficult for the employee and their options are limited, but include asking if they can:

• use any annual leave they have (the employer does not have to agree);
• take unpaid leave (the employer does not have to agree);
• take unpaid time off to look after dependents ( the employee is entitled to in specific circumstances – please see here for more information); or
• go on furlough if the employee has caring responsibilities towards children as a result of school or childcare facilities closing (the children do not have to be vulnerable for this exception to apply).

We would always advise that, wherever possible, employers seek to agree employment arrangements with their staff in order to minimise the risk of employer-employee disputes.

If you have any questions about furlough or about any other employment related queries, the Collyer Bristow Employment Team is on hand to help.

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