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The end of “shielding”- how to deal with extremely vulnerable employees from 1 August 2020

Shielding individuals (“shielders”) are those in the clinically “extremely vulnerable” category who are at very high risk of severe illness from COVID-19, including people who have had organ transplants, those with specific cancers and leukaemia, those undergoing treatments that affect the immune system and those with severe respiratory conditions.

Shielders received a letter at the beginning of the lockdown directing them to “shield”, namely to stay at home and avoid potential contact with the virus. Shielders could not attend the workplace, and employers could not require or allow them to do so.

On 6 July 2020, the shielding regime was relaxed slightly, with shielders permitted to meet outdoors in groups of up to 6 people and create a “support bubble” with one other household. However, employers were still advised to support shielding, including offering home working where possible. If working from home was not feasible, then furlough pay (for employees who had been furloughed previously) or SSP was available.

However, this will change when the Government pauses the shielding programme in England from 31 July 2020 onwards.

We set out below the key issues to consider when dealing with former shielders going forwards.

  1. Potential returns to the workplace

From 1 August 2020, shielders can return to the workplace if they are unable to work from home, as long as the workplace is “COVID-secure”.

Before bringing any shielders back to the workplace, ensure that you are following the specific Government guidance for your sector, which is available here.

However safe your workplace, remember that shielders are still advised to adopt strict social distancing and stay at home where possible (due to the increased health risks they face from COVID-19). Therefore, if they can work from home, they should do so.

  1. Conduct individual risk assessments

Employers should conduct individual risk assessments to support former shielders to return to the workplace, taking into account their particular health conditions and circumstances. Consider amended duties, redeployment, adjusted hours (e.g. to avoid commuting on busy public transport), providing parking at work (to avoid public transport) etc. Remember that you will need the individual’s agreement to vary any of their terms and conditions.

Consider whether you need any specialist advice to assist with this process, such as from occupational health or the employee’s doctor or consultant.

  1. Communicate openly with shielders and seek their agreement to any return to the workplace

Whilst some shielding staff will be ready to return to work, others may be very anxious, uncomfortable or uncooperative about returning. It is, therefore, critical to communicate individually with them to agree specific arrangements resulting from the risk assessments and address their concerns.

If shielders are anxious about returning to the workplace, try to alleviate this as far as possible, for example by:

  • providing detailed information regarding the measures you have taken to make the workplace as COVID secure as possible - some businesses have even created electronic/virtual tours of the workplace for staff to watch before returning;
  • allowing them to visit the workplace to see for themselves that it is COVID secure;
  • considering a phased return; and
  • offering (or reminding them) of Employee Assistance Programmes or counselling services available to them.
  1. Handling refusals to return

If you have made the workplace as COVID-secure as possible and carried out individual risk assessments and taken any measures required, anyone who still refuses to return to work may be acting unreasonably and could, potentially, be treated as “absent without leave” and be disciplined.

However, disciplining an anxious shielder for refusing to return to the workplace will not foster good employee relations, so you should consider other available options, such as:

  • keeping the individual on furlough until the end of October (provided they were furloughed for a minimum 3-week period before 1 July 2020); or
  • agreeing a period of unpaid leave.

You should also beware of a potential health and safety or whistleblowing claim, for example, if a shielder believes that there is a serious and imminent danger or that the workplace is not COVID-secure.

  1. End of entitlement to statutory sick pay (SSP)

Since April, those who were in self isolation due to shielding (even if they would otherwise be able to work) have been able to get SSP.

However, from 1 August 2020, employers can no longer claim SSP for staff members just because they are shielding.

If shielders are well and can work remotely, they should be paid as normal. However, they will not be entitled to SSP if not.  

  1. Beware of potential discrimination

Many shielders will meet the definition of disability under the Equality Act 2010, so be careful to avoid discriminating against them. If you dismiss them because they are unable to or refuse to return to the workplace, this could constitute discrimination arising from disability, which may be difficult to justify. You will also need to, and then make, any reasonable adjustments, such as allowing homeworking or transferring them to another role in a lower-risk area.

There is also a risk of race or age discrimination, as some staff members may be more at risk from the consequences of COVID-19 due to their race or age, so tread carefully.

 

This is a complex area, so please contact Sarah Lee or another member of the Employment Team if you need any help.

 

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.

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