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Information correct as of 12 Noon 11.05.2020

Coronavirus: Can a pregnant woman refuse to work, during the Pandemic?

Following the Government placing all pregnant women into the “vulnerable” category, over the last few weeks we have received a great many enquiries from pregnant women, regarding the impact that COVID-19 has had on their ability to carry out their job, as normal.

The fact that they are in the vulnerable category does not mean that they are required to self-isolate, it means that they should practice social distancing wherever possible, which includes whilst doing their job / in the workplace.  This has posed problems in itself, together with the Royal College of Gynecologists’ (RCOG) guidance, drawing a distinction between pregnant women in their 1st, 2nd and 3rd trimesters.

The upshot of pregnant women not needing self-isolate but adhere to social distancing guidelines, does not mean that it is quite as simple as saying that all pregnant women should not be going into work, nor in the alternative, that an employer can oblige them to attend the workplace.  Each individual and their employer will have to look at their situation in isolation, taking the individuals role and the requirements of the same into account, when deciding what to do to ensure that they are following the Government’s advice.

In every case, employers should carry out a risk assessment (whether for the first time, or updating an existing assessment), in light of the current pandemic to see whether the virus presents any new or different risk(s) to the individual in the workplace and/or in carrying out their role.  This is a legal obligation, therefore it would be advisable for employers to do this in respect of all pregnant workers/employees.

When considering the results of that assessment, if it is that there is a risk of the individual contracting the virus posed by them in doing their job then the employer must look at whether the individual’s terms and conditions can be varied to alleviate and remove that risk(s).  This may mean altering their hours or place of work, for example, allowing them to work from home. 

If adjustments cannot be made, an employer must consider whether there are any suitable alternatives roles for that individual to undertake.  We have come across frontline NHS workers who have been moved into administrative roles, that they can do alone in an office or from home, for example.

If adjustments cannot be made and there are no suitable alternatives, an employer should suspend the individual on full pay. 

If no adjustments or alternatives can be found, an employer may want to consider whether furloughing that member of staff is an option.  In many cases, this will offer a practical solution for both parties, however, furlough is discretionary not mandatory and in many cases consultation with the individual and consent to be placed on furlough leave, may be required. 

As set out above, this does not mean that all pregnant women have the right to be suspended on full pay, for example, if someone travels into work in a car alone, and then goes straight into their own office the risk of them contracting the virus by continuing to do their job would probably be extremely limited, however, for someone that travels into work on public transport then works in a public-facing role or in a call center, suspension (subject to the ability to furlough) may be the only option.    

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