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From 2 December clinically extremely vulnerable people can return to work

The National lockdown in England will end this week and will be replaced by a new system of tiers. We're still waiting for the Regulations, but as we previously indicated, everyone who can work from home is expected to do so across all three tiers. However, the advice to people who are clinically extremely vulnerable will change. During lockdown they were advised not to go to work if they couldn't work from home. But, from 2 December, the shielding programme will pause again for most people and they can return to work.

There are two exceptions:

1. Shielding may be reintroduced in the worse affected local areas for a short period. Updated guidance suggests that this will apply to some, but not all, tier 3 areas - but only if the Chief Medical Officer deems this necessary.

2. Some, particularly vulnerable, people will receive a new shielding notice.

Anyone who is told to shield should therefore, remain at home if they can't work from home. Please refer to our previous blog which explained what options you have if a member of your staff is expected to shield after the lockdown ends.

Our FAQ's, set out below, explain how to deal with clinically extremely vulnerable staff who are not asked to shield from 2 December.

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

If your workplace is already open or you're planning to reopen on 2 December, 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. The government has a suite of sector specific guidance notes to help organisations work safely during coronavirus. These were updated again on 27 November and you should check to make sure nothing has significantly changed since you last looked at them. The guidance says this about the tiers:

'In Tier 1: Medium alert and Tier 2: High alert, clinically extremely vulnerable individuals are advised to work from home where possible but can still attend work if they cannot work from home.

In Tier 3: Very High alert, clinically extremely vulnerable individuals are strongly advised to work from home, but can still attend work if they cannot work from home.'

Even if you've already put in place changes to make your workplace safe for extremely vulnerable members of staff you should still conduct individual risk assessments before asking anyone in this group to return to work. Your risk assessments should 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).

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

Anyone who has been shielding is likely to be disabled within the meaning of the Equality Act 2010. If most of your staff have already returned to work (or are due to return after the end of lockdown) 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 them - by agreement - to a role that poses the least risk to them. For example, if your 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? 

You may also need to consider other adjustments. For example, if the employee uses public transport to get into work, can you adjust their working hours to help them avoid peak hours?

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

Although, rates of infection have fallen by around 30% during lockdown, many vulnerable people are still extremely nervous about venturing out - particularly if they live in an area where the infection rate is still extremely high, or their workplace is located somewhere with a particularly high rate.  

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. Plus, until clinically extremely vulnerable people are vaccinated against Covid-19, the risks are still high. The most recent report from the government's Scientific Advisory Group for Emergencies (SAGE) concludes that "Keeping prevalence low enough during the coming winter will be a great challenge" . Therefore, even if you are convinced that your workplace is safe, you should listen to concerns raised and try and agree a way forward.

4. Can we furlough anyone who is shielding?

Government guidance  'check which employees you can put on furlough to use the CJRS' makes it clear that people at the highest risk of severe illness from coronavirus and those on long term sick leave can be furloughed under the extended scheme. They don't have to have been furloughed before - but you must have them on your payroll on or before 30 October. 

However, if you receive public funding, you're not expected to furlough staff. The guidance says: 'If you have staff costs that are publicly funded (even if you’re not in the public sector), you should use that money to continue paying your staff, and not furlough your staff. Organisations can use the scheme if they are not fully funded by public grants and they should contact their sponsor department or respective administration for further guidance'. Take advice if you're not sure.

 5. Are shielded people entitled to SSP?

We believe that the Regulations which enable employers to pay SSP to people who have been told to formally shield will remain in place. However, anyone who isn't shielding will not be entitled to SSP and 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). 

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