The Royal College of Midwives advise pregnant workers of their rights and employers' duties amid the pandemic
Background and context
For pregnant people in the workplace, especially for those in public-facing roles, these are profoundly worrying times. They will have been anxious about how to continue working safely and, if this were not possible, whether they could count on their employer to support and protect them. The decision of the government to classify pregnant people as clinically vulnerable, at the start of the first national lockdown, will have only added to these uncertainties.
In response to the very many requests for advice and information from pregnant workers, the Royal College of Midwives (RCM), the Royal College of Obstetricians and Gynaecologists (RCOG) and the Faculty of Occupational Medicine (FOM) developed occupational health advice for employers and pregnant workers.
Advice to employers
Our advice to employers is based on their responsibility to protect the health and safety of pregnant individuals who are working, as enshrined by the Management of Health and Safety at Work Regulations 1999 (MHSW). The regulations state that where there is a risk of exposure to infectious disease that’s greater in the workplace than to what they would be exposed to outside the workplace, an employer must remove the risks, or offer suitable alternative work or suspend on normal pay. Where employers do not undertake risk assessments or make suitable adjustments, they may be in breach of the MHSW regulations. Nothing that has happened during the COVID-19 crisis negates these responsibilities. In fact, because pregnant people are considered clinically vulnerable, employers will need to take special consideration of their health and safety.
While employers have a duty to assess all pregnant workers irrespective of the stage of pregnancy they are at, the clinical evidence relating to the risks of COVID-19 infection and pregnancy indicate that there is an increased risk of becoming severely ill for people who are 28 weeks pregnant and beyond. Accordingly, our advice is that employers will need to take account of the gestation of the pregnancy when determining how to support the pregnant people in their workforce.
Those under 28 weeks’ gestation
Pregnant workers under 28 weeks’ gestation, with no underlying health conditions, should only be supported to continue working if the risk assessment advises that it is safe for them to do so. This means that if employers are fully compliant with requirements around pregnant workers, specifically the need to undertake risk assessments and make suitable adjustments, then these workers should be able to continue working. However, if it is not possible to remove or manage the risks, then these people should be offered suitable alternative work (including working from home) or suspended on their normal pay.
Those after 28 weeks’ gestation or with underlying health conditions
For those who are 28 weeks pregnant and beyond, or with underlying health conditions at any gestation, they should not work in any public-facing roles. Where employers are unable to redeploy them and make arrangements to keep them safe, and where it is impossible for these workers to work from home, then they will need to be suspended on normal pay.
Our occupational health advice was written for implementation at the peak of the pandemic, when the clear instruction from government was that vulnerable individuals, including pregnant people, should stringently apply socially distancing measures and that extremely clinically vulnerable individuals were advised to shield. There is now a more complex landscape of factors to consider, not least of which is that the implementation of social distancing measures and of other restrictions now varies across UK countries and increasingly, between different employment sectors.
Nevertheless, the clinical information on which our advice is based still stands, as does the fundamental responsibility on employers to protect the health and safety of pregnant individuals who are working. Following news of the latest lockdown, it is timely to remind pregnant people of their rights and employers of their obligations to their pregnant workers.
Thompsons is proud to be a legal partner to the RCM, and offers members access – free of charge – to a comprehensive package of legal services designed to uphold their rights both in, and out, of work. Learn more or get in touch for advice.