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Furloughing: Does staying home to limit a shielding individual’s exposure to Coronavirus constitute a ‘caring responsibility’?

Latest update on furloughing: Furlough is an option for individuals who cannot work from home and cannot go to work because they are living with someone who is shielding, even if they are not carers.

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Published 2 March 2021

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As vaccination rates continue to increase, it is hoped by everyone that the dilemma of whether someone living with an individual who is clinically extremely vulnerable can be furloughed or not will soon be a thing of the past. However, with many shielding individuals yet to receive their second dose it seems this dilemma could be around for some time yet.

Who can be furloughed?

There are a number of employees who can be furloughed, including those who have ‘caring responsibilities’ towards people who have been particularly impacted by the virus.

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 to a clinically extremely 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.

What constitutes ‘caring responsibilities’?

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 constitute a ‘caring responsibility’ on its own.

It still remains the case that just because an individual is eligible for furlough does not mean that their employer must agree to put them on furlough. Ultimately, the decision to furlough someone is at the employer’s discretion.

The furlough scheme is due to end on 30 September 2021.

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

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Shorter Reads

Furloughing: Does staying home to limit a shielding individual’s exposure to Coronavirus constitute a ‘caring responsibility’?

Latest update on furloughing: Furlough is an option for individuals who cannot work from home and cannot go to work because they are living with someone who is shielding, even if they are not carers.

Published 2 March 2021

Associated sectors / services

  • Employment law for employees
  • Employment law for employers

Authors

As vaccination rates continue to increase, it is hoped by everyone that the dilemma of whether someone living with an individual who is clinically extremely vulnerable can be furloughed or not will soon be a thing of the past. However, with many shielding individuals yet to receive their second dose it seems this dilemma could be around for some time yet.

Who can be furloughed?

There are a number of employees who can be furloughed, including those who have ‘caring responsibilities’ towards people who have been particularly impacted by the virus.

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 to a clinically extremely 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.

What constitutes ‘caring responsibilities’?

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 constitute a ‘caring responsibility’ on its own.

It still remains the case that just because an individual is eligible for furlough does not mean that their employer must agree to put them on furlough. Ultimately, the decision to furlough someone is at the employer’s discretion.

The furlough scheme is due to end on 30 September 2021.

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

Associated sectors / services

  • Employment law for employees
  • Employment law for employers

Authors

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