If you’re pregnant you’re naturally going to have concerns about catching the COVID-19 virus. So as the lockdown eases, what happens if your employer refuses to allow you to return from home, but you don’t feel safe enough to return to the workplace?
The starting point for this is that all employees are legally entitled to a safe workplace. The most recent government guidance is also in your favour, as it says you should work from home unless it is impossible for you to do so; and the new Health Protection (Coronavirus) Regulations 2020 legally define a pregnant woman as a ‘vulnerable person’.
However, if despite this, your employer is pressuring you to return to your place of work, here’s what you need to know.
Pre-COVID-19, it has been an employer’s legal duty to protect the health, safety and welfare of their employees. This now includes assessing how to work safely during the coronavirus crisis and follow the new guidelines. The government has issued several relevant documents this week – including one for those who work in offices and contact centres – and the suggested guidelines include: social distancing, using screens and barriers to separate people, and back-to-back working.
Pregnancy risk assessment
Employers also have duty to carry out a risk assessment for pregnant workers. After you have told your employer you are pregnant your employer should undertake a specific risk assessment if your work gives rise to a risk your health or the health of your baby.
The assessment should involve an assessment of your situation and any restrictions on activities that are necessary. You should expect your employer to communicate their assessment so you can consider how safe it makes you feel.
Acting on the assessment
The point of the risk assessment is to eliminate risks where possible – but there is an element of reasonableness about this which means the risk needs to be reduced to a reasonable extent. It’s not enough to just fire off a quick assessment of the risks in the workplace, employers have to act on the findings. So if your employer has decided there needs to be increased hand sanitisers, for example, or handwashing facilities, it’s reasonable to say you don’t want to return to the workplace at least until those are installed.
If your employer has followed the medical and safety guidance and says that it’s reasonable you return (some employers are taking this approach, as pregnancy is classed as a moderate risk and not high risk), you could first ask if there’s another role you could do – either from home, or in a safer area of the workplace. For example, an employer would be expected to do this if you worked with chemicals that could harm a baby in-utero. There would be no way to make that role safe for a pregnant woman, so an employer should explore offering available suitable alternative roles, on financially equivalent terms.
If your employer won’t accept homeworking; furloughing; or offer you another role, and there is still an unreasonable risk the final option to protect you is to medical suspension on full pay. You may decide to speak to your employer about this.
It’s worth checking the latest report from the Royal College of Obstetricians and Gynaecologists. The information mentions a study, which found that pregnant women from black, Asian and minority ethnic (BAME) backgrounds were more likely than other women to be admitted to hospital for coronavirus. There were also found to be increased risks for pregnant women over 35; those with high blood pressure or diabetes and those who were overweight or obese.
Refusing to go into work
If you’ve tried everything else, and you still don’t safe enough to return to work, you can inform your employer that you believe going in presents a ‘serious and imminent risk of danger to your health and safely’. If you are disciplined for this or dismissed or discriminated against (for example, you’re not given a promotion), you may be able to claim under Section 44 of the Employment Rights Act 1996. This is pretty much a last resort but it may result in your employer giving you a settlement agreement to end your employment (to avoid going to the employment tribunal) or finally allowing you to work from home or continue on furlough, and receive at least some of your income.