How To Manage Furloughed Workers Who Can't Or Refuse To Return To Work

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Over the past few days, we’ve been getting more and more calls from our clients regarding furloughed workers refusing to return to work now that their furlough period has come to an end.
Although many of these employees may have valid reasons for not being able to return to work, such as childcare issues or health concerns, there are some who may be enjoying their paid time away from work and hoping to make it last a little longer.

In our last blog post, we looked at how you should go about this return to work process, but what should you do when an employee is refusing to go back to work, particularly if they cannot provide a fair reason.

Employees Who Have Childcare Issues

As schools prepare to reopen for the Autumn Term in the next week or so, many parents will be relieved to finally get their child/children back into school so that they can have some alone time or get back to work.
However, there is still some uncertainty as to how the schooling system will manage Covid and how this may vary between regions, especially in cities where Covid cases are on the rise and may be at risk of a local lockdown.

There is no guarantee that children will be able to go back to school full-time with some schools looking at part-time options to keep classes to a smaller size.

There is also a chance that some schools may face closure if there is a spike in cases in that location, or even a reported case at that school.

Hence, many parents are still not sure how they are going to juggle caring for their children and getting back to work if they are being asked to return from furlough.
For most, the normal childcare support that they may have from family, friends or paid help, might not be available due to those people being vulnerable or self-isolating.

This is something that employers need to carefully consider when they ask furloughed workers, who have young children, to return to work. Ordinarily, employees who are unable to work due to disruption to their caring arrangements, have a statutory right to reasonable time off for dependents.  However, this statutory leave is unpaid.

With the furlough scheme now closed to new entrants those employees who were not placed on furlough prior to the cut off date of 10th June 2020, would have to take the time off as dependent care leave which is unpaid or if both parties agree could take paid holiday to cover this time also.

If staff do qualify for furlough it could be agreed by both parties to use the flexible furlough scheme up to its expiry at the end of October.  However, we must stress this is not an automatic right for employees but can be agreed by both parties if they so wish.

Employers should also consider the fairness of this if they already have employees off on unpaid dependent care leave who don’t qualify.  As such, the safer course of action may be to treat it all as dependent care leave.

Employees Who Must Quarantine

Workers who are travelling to one of the ‘high risk’ countries such as Spain, Croatia or France, will need to self-isolate for 14 days once they return to the UK which means they will be unable to return to work if they do not have the option to work from home.

As an employee who is quarantining is not sick, such time off would ordinarily be treated as unpaid leave and not sick pay.  However, there are options available to employers:

If employees are already on furlough, they could remain on furlough or if they are eligible to be re-furloughed this could be agreed by both parties if they wish.

Additionally, should an employee have holidays available to take employers could agree to authorise further paid holiday.  However, both these options are entirely up to both parties agreeing to these terms.

As an employer you may wish to communicate to all staff and explain the company stance on quarantine and whether employees will be paid, refurloughed (if eligible) or unpaid.
Employers should ensure that they are being consistent and/or are applying transparent rules on this scheme.

If an employee embarks on their holiday abroad whilst the travel corridor is open and then it is subsequently closed, requiring quarantine whilst they are away, this is through no fault of their own, therefore they have come to some agreement with regards to pay.
However, if staff go away knowing that they will have to quarantine and knowing that this will be unpaid, then it will remain unpaid.

It might be a simple case of Covid-19 anxiety which requires some reassurance on your part that you have done everything you can to ensure that the workplace is safe and that you have met your duty of care by completing a Covid Risk Assessment and making your workplace Covid secure.

If you are confident that you have put all the necessary safety measures in place to protect your workers and have discussed this with them, yet your employee is still refusing to return to work, then you can mark this as unauthorised absence and follow your normal disciplinary procedure.

Furloughed Employees Who Report Covid Symptoms

If, when you ask a furloughed worker to return to work, they report symptoms that are in line with Covid-19, then you must ask them stay home and get tested. Covid tests are now available, for free, to anyone who has symptoms.

The employee will need to self-isolate until they receive their test results. If found positive, they will need to continue to self-isolate for at least 10-days since they first started experiencing symptoms.

If an employee lives with someone who is showing symptoms and tests positive for Covid or has been contacted through track and trace and advised to self-isolate, they must do so for 14 days.

You can still take the employee off the furlough scheme during this time and, instead, put them on sick leave so that they can receive Statutory Sick Pay which you may be able to claim back through the Coronavirus Rebate Scheme.

If the Covid test comes back negative, then your employee will be expected to return to work. If the illness that they are experiencing is preventing them from doing so, then they should visit a medical practitioner or their GP for further investigation and to obtain a medical note for your records; otherwise, their absence should be recorded as unauthorised and follow the normal disciplinary process that is in place for your business.

If you require any further advice on how to manage employees who are refusing to return to work following furlough, then please call us on 0845 2626 260 to speak to one of our expert HR consultants.

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