Employees are being told to remain calm during the coronavirus pandemic. They must be able to prove they cannot work because of the virus, otherwise they won’t qualify for furlough pay. If you do find yourself out of pocket, there are some things you shouldn’t do. You should avoid taking unnecessary risks, including working outside of your normal hours. You don’t want to put your job at risk. And you should avoid doing anything that might jeopardise your entitlement to furlough payments.
The government says it expects employers to provide furlough pay for employees who are unable to work due to the coronavirus outbreak. However, the rules around what constitutes furlough pay are still very much up in the air. This is because the Coronavirus Job Retention Scheme (CJRS), which covers most businesses, doesn’t cover everyone. Some companies are opting to use the furlough scheme instead. But the rules around how furloughed employees should behave while they’re off the clock aren’t clear. So we asked experts for advice. Here’s what they had to say…
What employees may and may not do during a furlough.
Furloughed workers are allowed to undertake training while out of work. However, this must not benefit the employer. Employees can also take unpaid leave to attend training courses or conferences that are approved by their employers. They can also attend training courses offered by trade unions or professional associations.
However, furloughed employees cannot accept employment offers or perform duties for another employer during the period of furlough. This includes working for another company or organisation.
Employees can also apply for unemployment benefits, however, they are required to provide evidence of the training course they attended.
Can employees perform voluntary work during time off?
Furloughed workers are entitled to take part in voluntary activities during the periods of furlough. This includes volunteering at charities, fundraising events, and participating in community groups. However, employers are permitted to facilitate volunteer activity while furloughing an individual. They must ensure that the employer does not use the employee’s participation in such activities as leverage against the employee in future employment negotiations.
Employees are expected to contribute to the wider community whilst on furlough. This could include taking up a position within a charity or engaging in some form of community outreach. In addition, employers cannot require an employee to perform unpaid work whilst on furlough unless there is no alternative.
Can an employer make contact with furloughed employees generally?
Employers can and should keep up with furloughed workers in order to avoid feeling like they are being forgotten. This includes making sure furloughed employees know what is happening, how long it will take, and whether they will be paid during this period. If employers want to speak directly to furloughed workers, they should use a third party such as a union or legal counsel.
Furloughed employees can act as representatives for their colleagues, including unions, without violating their employment contracts. They can also represent themselves, although doing so could lead to fines under the Fair Work Act.
An employer must pay all wages owed to furloughed staff. However, there are exceptions to this rule, depending on what the employee does while furloughed. For example, an employee must work for one hour every day of the furlough period to be entitled to full wages.
While furloughed, employees shouldn’t do anything for the company. Doing so could mean they lose their job security, and therefore their salary.
Can an employer generally communicate with furloughed employees?
The Fair Work Commission has ruled that employers can require employees to undertake training during the government shutdown. But it doesn’t matter whether the training benefits the company. “Training undertaken during the furlough period must be completed within the f…
A federal judge has struck down a Texas law requiring abortion providers to bury aborted fetal tissue in a separate container from human remains.
STORY: “Texas abortion clinic rules blocked by judge”
In his ruling Friday, Judge Sam Sparks wrote that the state law “is unconstitutional because it imposes an undue burden on women seeking abortions.” He added that the law “imposes an undue burden on a woman’s ability to make her own reproductive choices.”
Abortion clinics in Texas had been required to dispose of fetal remains in a manner similar to medical waste under the law, which went into effect in 2013. Abortion opponents argued that the law forced doctors to act against their religious beliefs.
The American Civil Liberties Union sued on behalf of Planned Parenthood Gulf Coast, Whole Woman’s Health and Reproductive Services of El Paso. A spokeswoman for Gov. Greg Abbott called the decision disappointing.
Can employers mandate that employees check their email?
The government shutdown has been ongoing since Dec. 22, 2018. As a result, many federal agencies are now operating under a partial shutdown. This includes the Office of Personnel Management (OPM), which manages the Federal Employee Health Benefits Program (FEHB). OPM oversees FEHB, which covers over 20 million active and retired federal employees and their dependents.
During the shutdown, OPM has suspended premium payments for some plans, including those offered through the Federal Employees Group Life Insurance program (FEGLI). However, it appears that OPM has allowed certain employees to continue receiving email messages sent to their personal accounts while they are furloughed.
In response to questions about whether employers can revoke furloughed employees’ access to their email accounts, OPM confirmed that “employees who are furloughed due to the lapse in appropriations may still use their email account.”
However, OPM added that “the agency cannot guarantee that the employee will be able to access his/her email account during the period of furlough.”
While OPM did not specify what constitutes accessing one’s email account, the Code of Government Ethics states that “n individual shall not use public office for private gain, nor permit others to do so.”
Additionally, the CJRS prohibits federal employees from engaging in political activities while on duty or performing duties. In fact, the CJRS specifically addresses the use of electronic media, stating that “mployees shall not engage in partisan political activity while employed by the United States or while acting within the scope of employment.”
Finally, the Hatch Act requires federal employees to refrain from participating in political campaigns while working for the federal government. Specifically, the law states that “o officer or employee of the executive branch of the United States… shall make any communication regarding a vote to be taken by such body or concerning a question pending before such body…which relates to any political matter.”
Employees who violate the Hatch Act face disciplinary action ranging from reprimand to removal from federal service.
Employers may force employees on furlough to delegate their responsibilities.
The government announced that it plans to introduce a three week unpaid workfare scheme for those who have been affected by the coronavirus pandemic. This includes people whose jobs have been lost due to closures, such as retail stores, restaurants, leisure centres and gyms. However, some businesses are now questioning whether this scheme could breach employment law.
Employees who are asked to take part in this scheme must be paid wages for the hours worked, even though they don’t actually perform any work. If you’re required to undertake this type of scheme, here are some things to consider:
• Can you be forced to take part in this type of scheme?
If you are employed under contract, you cannot be compelled to participate in this scheme. You are free to refuse to take part without being penalised.
However, if you are self-employed, you may be able to force yourself into taking part in this scheme. Your employer can ask you to undertake this scheme, but you still have the option of refusing.
• What does “unpaid” mean?
You are entitled to receive pay for the hours you spend working. Therefore, if you are furloughed, you are still expected to be paid for the hours you actually work.
Can an employee on furlough engage in promotional activity?
Furloughed federal workers are prohibited from performing any duties that directly benefit their employer. However, employers must continue paying employees for all hours worked, including those spent attending training sessions. Additionally, employers should provide paid leave for furloughed employees.
The Office of Personnel Management (OPM), the agency responsible for administering the Federal Employee Retirement System (FERS), recently updated guidance regarding furloughs. In particular, OPM clarified that furloughed employees can perform activities related to personal enrichment as long as they do not benefit the company. For example, furloughed employees could attend conferences, classes, workshops, seminars, etc., without incurring additional costs.
However, employees cannot engage in promotional activities such as speaking engagements or participating in contests. They also cannot work unpaid overtime. Employers should ensure that all furloughed employees receive full compensation for all hours worked.
What if a business has an immediate need for workers who are currently on full-time furlough?
The government has introduced legislation to allow employers to ask people who are already on furlough – those who are working part-time because of coronavirus restrictions – to step up to fill roles temporarily. This is known as flexi-furlough.
Flexi-furlough allows employers to continue paying salaries to staff on flexible furlough, meaning they do not lose income, but it does mean that they cannot use the same person permanently. They must make sure there is enough cover in place to ensure continuity of service.
Employers will be able to apply to HMRC for permission to request a temporary worker to perform duties normally carried out by a furloughed employee, such as taking over a vacant post.
This will help businesses that are struggling to find suitable staff to cope with the impact of Covid-19.
What are the implications of permitting or mandating employees to work during a furlough?
The government announced in December 2018 that it would allow furloughed public sector workers to carry out unpaid work during the coronavirus pandemic. However, there are some exceptions to the rule. For example, those who are self-employed or working for themselves cannot be required to do unpaid work. Those employed by companies that are part of the government’s enterprise zone scheme are exempt too.
However, the law states that if an employer requires you to perform unpaid work while you are furloughed, you must repay the amount of money you earned. If you refuse to do so, you could face criminal charges. You could even lose your job.
Employers should make sure they are aware of what counts as work carried out whilst on sick leave. This includes things like making phone calls, writing emails, updating social media accounts, doing admin tasks, etc. It does not include things such as watching TV, reading books, playing games, or eating food.
Furloughed workers should be able to return to work without fearing prosecution. They should not be forced to go into quarantine upon returning to work. In fact, they shouldn’t be expected to do so.
If an employer makes false statements regarding the nature of the work carried out whilst furloughed, they could face fines up to £5,000.
A breach of the Coronavirus Job Retention Scheme could see you being fined £2,500 per person. This fine applies to each individual who fails to comply with the rules set out by the government.
You should check what your contract says about whether or how much you have to repay to your employer. If you don’t want to return any money, you should seek legal advice before signing anything. You could end up losing thousands of pounds.
Who will determine whether employers are requesting labor from their employees?
A new law came into effect yesterday which gives employers less time to report cases where people are being forced to work illegally. The Criminal Justice & Regulatory Reform Bill 2018 includes a provision that requires employers to report cases of illegal employment within three days of becoming aware of it. If they don’t, they risk paying penalties of up to £10,000 per worker per offence. This applies whether the employee is self-employed or employed by another company.
The government says the measure is intended to protect vulnerable groups such as children and young people. But critics warn that it could lead to employers cutting corners and forcing workers to carry out tasks that aren’t part of their job description.
HM Revenue & Customs say they have already received reports of 300 cases since the legislation came into force. They added that they had been “working closely with industry bodies, including the Confederation of British Industry, to help businesses understand how to use the reporting tool”.
Employees who are required to continue to work during a period of fURLOUGH should inform their employer immediately
There is a possibility that employers will lose their ability to access CJRS altogether
to report suspected fraud in the system.
Can a worker be punished for refusing to work on a furlough?
An employee cannot be disciplined for failing to perform his/her duties while being furloughed. A furloughed worker is deemed to be present for purposes of discipline even though he/she is not actually performing any duties. However, if the furloughed worker refuses to comply with reasonable requests from his/her employer to return to work, s/he could face discipline under the Employment Standards Act.
The Ontario Human Rights Code states that discrimination occurs where someone is treated differently based on race, ancestry, place of origin, colour, religion, age, sex, marital status, family status, disability and sexual orientation.
A furloughed worker may claim that s/he is discriminated against if s/he believes that s/he is being treated differently due to one of the prohibited grounds listed above. For example, if a furloughed worker does not want to return to work because it conflicts with religious observance, s/he may argue that s/he is treated differently based on religion. If the furloughed employee is successful in making such a claim, s/he may be entitled to compensation.
Frequently Asked Questions
I’m the director of my business, can I furlough myself?
The government announced today that it is extending the Coronavirus job retention scheme to include directors, shareholders and partners of businesses. This means that those people who are employed by companies registered under the Limited Companies Act 1984 (LCA), and who’ve been working for the company since before 28 February 2020, will now qualify for the scheme.
The scheme outlines that employees who’ve been on the payroll on the date the LCA came into force – 5 April 2005 – will be eligible for this furlough scheme. Employees who joined the company after this date won’t be covered.
Employees who work for a company that uses a PAYE scheme will be ineligible for the scheme. Those whose salaries are paid out of dividends or capital gains will also be excluded.
I’m paid in dividends, can I still receive furlough pay?
The government announced that it would give out furlough grants to those employees who took a salary through a PAY Escheme. However, there are some exceptions to this rule. Employees who are paid solely in dividends aren’t eligible for the furlough grant. This includes dividend income from shares held in a pension fund, ISA, etc.
This isn’t just about the amount of money you’re receiving; it’s also about how you’re being compensated. You could be earning £10k per annum in dividends, but if you’re getting that in addition to a regular salary, then you’re ineligible for the furlough scheme.