New UK government guidance for 'clinically extremely vulnerable' workers in England states that these workers are "strongly advised to work from home", but if they cannot work from home, they should not attend work.
What is the position for shielding workers in England and Scotland?
When does the guidance apply in England?
For now, we know that the new shielding guidance applies from at least 5 November until 2 December 2020. The UK government has indicated that it then intends to return to a 'regional approach' in England and will issue further guidance at that point.
Who is covered?
The guidance applies to those in England who have been identified as clinically extremely vulnerable, usually referred to as 'shielding'. The current list of conditions covered in England is here.
What about 'shielding' workers in Scotland?
The Scottish government guidance continues to be that everyone who can work from home, should do so.
For those on the Scottish shielding list, the new Scottish tier system includes new guidance. This indicates that those who are shielding (and who cannot work from home) may be able to attend the workplace in all tiers, subject to the workplace being made safe for them - discussed below.
The new Scottish guidance also states that for areas in Tier 4 restrictions, the Chief Medical Officer will issue a letter to those on the shielding list which is similar to a fit note and which will last for as long as the area is under Tier 4 restrictions. It states that this does not automatically mean that those on the shielding list should not attend work, but the letter can be used in the "few cases where it is not possible to make your workplace safe". It states that employees should discuss the situation with their employer, and if this results in adequate protection, they can continue to work.
What should we pay shielding workers who cannot come to work?
If individuals can work from home, you should facilitate this and pay them as normal.
If they cannot work from home, or come to work, you can furlough them under the extended Coronavirus Job Retention Scheme, if you and the employee meet the eligibility criteria for this.
If you don't furlough these staff, they may be eligible for statutory sick pay, but we would recommend that you contact us if you are considering statutory sick pay, rather than furlough.
What about those living with someone who is shielding?
The new English shielding guidance states that it does not apply to workers who live with someone who is in the shielding category, and that they should continue to attend work in accordance with the new general guidance (i.e. they can attend work, if they cannot work from home).
In Scotland and England, therefore, these workers can attend work, subject to the workplace being made safe for them – discussed below.
As to whether you can furlough these workers, simply because they live with someone who is shielding, one set of government guidance on the extended furlough scheme does indicate that you can furlough workers who need to stay at home with someone who is shielding. However, another set of guidance doesn't mention this group, and only refers to those who are themselves vulnerable, or who are unable to work due to caring responsibilities resulting from coronavirus. Given this, we would recommend that you contact us for advice on furloughing workers in this situation.
What about workers who are vulnerable, but not shielding?
Some individuals are classed as vulnerable, but not 'clinically extremely vulnerable'. This includes those aged 70+; with certain medical conditions; who have a BMI of 40+; or who are pregnant.
As with everyone else at present, those who are vulnerable should work from home if they can. If vulnerable workers cannot work from home, the current guidance is that they can attend work, subject to the workplace being made safe for them – discussed below.
Making the workplace safe
In terms of making your workplace safe, in summary:
- Follow the appropriate Scottish or UK government guidance for workplaces, which covers issues such as risk assessments, social distancing, face coverings, cleaning and workforce management.
- Carry out a risk assessment regarding the risks posed by COVID-19. This should cover all aspects of your business activity, and include workers' commute.
- Once you have identified risks, you need to implement control measures to reduce or eliminate those risks, and take steps to enforce those control measures.
- Take extra care as regards workers who are extremely vulnerable (shielding) or vulnerable - carry out a risk assessment regarding their specific on-site role. Can that role be made safe? Also give extra consideration to the concerns of those living with someone who is shielding or vulnerable.
- You may need to make reasonable adjustments for disabled workers.
- You have specific health and safety duties as regards pregnant workers. Carry out a risk assessment regarding their specific on-site role. Can you implement measures to avoid the risks? This may involve altering working conditions or hours. If that is not reasonable, or does not avoid the risks, can you offer a suitable alternative role that is safe (on-site or working from home)? If there is no suitable alternative work, or the employee reasonably refuses it, it is likely that you will need to suspend on full pay for as long as necessary to avoid the risks posed by COVID-19 - in some cases, this can trigger an early start to maternity leave.
- You have a legal duty to consult with employees on health and safety matters.
Workbox subscribers can access more detailed information at Coronavirus: Workplace Health and Safety.
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Practice Development Lawyer
