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When can employees who are shielding return to work? Employers questions answered

People on the clinically extremely vulnerable list are more likely to become extremely ill, or to die if they contract Covid. During lockdown, they were advised not to leave their houses for any non medical reason and have only recently been allowed to take outdoor exercise and meet other people. That relaxation will be extended further from Monday 6 July and, from Wednesday 1 August 'shielders' will be able to return to work. 

Before you ask anyone who has been shielding to return to their workplace, you'll need to consider whether it's safe and appropriate for them to do so. This blog answers some of the most common questions we're asked about this.

1. Can a shielded employee continue to work from home?

Yes and they should continue to do so, even after the 'rules' around shielding are relaxed. Government guidance makes it clear that working from home remains the first option* and that this group should only return to their workplace if they can't do so and their workplace is 'Covid secure'.

* Since publishing this blog, the government has said that it's message to work from home is changing and from 1 August employers will be able to ask employees who have been able to work from home since the lockdown to return to their workplace, provided they have taken steps to ensure the workplace is 'Covid-19 secure' and social distancing measures are in place. The guidance has not yet been updated, but we anticipate that employers will be asked to give 'shielders' the safest available onsite roles and, if none are available, to consider if this is an acceptable level of risk.

2. Do we need to conduct an individual risk assessment for shielding staff?

If your workplace is already open, you'll have already conducted a risk assessment and put in place steps to protect staff and other users from the risks of being exposed to the virus. If you haven't already re-opened, follow our advice here on risk assessments and consulting staff or representatives about health and safety. 

Even if you've already put in place changes to make your workplace safe for vulnerable or extremely vulnerable members of staff you should still conduct individual risk assessments before asking anyone in these groups to return to work. There's also emerging evidence that people from certain BAME backgrounds are up to 50% more likely to die if they contract the disease than white British nationals. Your risk assessments should therefore include all potential risk factors and identify the steps you can take to reduce these to the lowest possible level.

If you can't reduce the risk you must consider other options (discussed below).

3. Can we ask someone who is shielding to change their job role to one that reduces their risk?

Anyone who is currently shielding is likely to be disabled within the meaning of the Equality Act 2010. If you are asking everyone to return to work this will, potentially, put disabled people who are included in the 'extremely vulnerable' group at a substantial disadvantage because it will expose them to a higher level of risk when compared to others who aren't in this group. That means that you must take reasonable steps to avoid the disadvantage. One option is to move the shielding employee - by agreement - to a role that poses the least risk to them. For example, if your shielded employee works in a public facing role (such as a busy reception) can you move them into an admin role which doesn't bring them into contact with very many people? 

4. What's the best way to respond if a shielded member of staff won't return because they are worried about their safety?

Even though some restrictions have been lifted, many vulnerable people are extremely nervous about venturing out because infection rates are still high (estimated to be around 1,000 per day) and there's no vaccine. 

Shielded employees are protected if their workplace poses a serious and imminent threat to their health. Under sections 44 and 100 of the Employment Rights Act 1996, employees (and possibly the wider group of workers) are protected from being subjected to a detriment (such as being suspended or having their pay deducted) or being dismissed for exercising their right to leave their workplace. 

To be protected, the employee must have a 'reasonable belief' that their workplace poses a serious and imminent threat to them, or to others - including members of the public and their own families. Anyone who has one of the medical conditions that makes them extremely vulnerable to becoming seriously ill or dying from coronavirus is likely to be able to establish a reasonable belief because of their status. Therefore, even if you are convinced that your workplace is safe, you should listen to concerns raised and try and agree a way forward.

The press release published by the government on 22 June says this:

"We recognise that individuals unable to work from home may feel uncertain about returning to work. Mindful of this, the government is asking employers to ease the transition for their clinically extremely vulnerable employees, ensuring that robust measures are put in place for those currently shielding to return to work when they are able to do so.

For anyone concerned about returning to work once the guidance has eased, we recommend they speak with their employer to understand their specific policies in relation to COVID-19. We advise they discuss their situation, agree a plan for returning to work and adjustments that may be needed before they return."

5. Can we furlough anyone who is shielding?

There was initially some confusion about this, but we now know that you can furlough shielded employees provided they have been furloughed for at least three weeks before the end of June. But you can't furlough someone if they are receiving SSP so, you'll need to stop SSP before you furlough them. 

If your shielded employee can't work from home and it isn't safe for them to return to work, furlough is a good option. However, the scheme is due to end on 31 October which means that you may have to consider other options after that date. 

6. Are shielded people entitled to SSP?

Currently yes, but from 1 August, those shielding will no longer be deemed incapable of work on that basis for SSP purposes. 

You can only continue to pay them SSP if they are entitled to it on another basis (such as illness or because they are self isolating etc). 

7. Will the government update its guidance on shielding?

At the moment the government has summarised the changes and we hope more detailed guidance will be published in due course.

Our Coronavirus updates

We're working hard to keep you up to date with legal developments around Coronavirus. We've set up a portal which includes lots of helpful articles and advice to help you.

If you have a query, that we haven't answered, please contact us.