Cases of COVID-19 have fallen significantly across the country, reducing the risk of catching the virus for everyone, including the most vulnerable. The government has always explained shielding as a temporary measure only, designed to protect those classed as clinically extremely vulnerable during peaks of the pandemic.

The prevalence of the virus is now low enough that the government advice is that individuals no longer need to shield from 1 April 2021.

Everyone on the shielded patient list should already have been offered a COVID-19 vaccine and many have now received two doses which should further increase their level of protection.

Although the advice to shield has ended, government advice is still that clinically extremely vulnerable people should take extra precautions to protect themselves. There are therefore still additional considerations for employers when managing these employees.

What are the implications for employers of shielding ending?

Everyone is currently still advised to work from home where possible pending further guidance from the government. Where possible, employers should therefore still allow a clinically vulnerable employee to work from home.

If a clinically vulnerable employee cannot work from home, the government is no longer advising that they do not attend the workplace. They therefore can now be asked to return, provided that their employer follows government guidance to take steps to reduce the risk of exposure to COVID-19 in the workplace and complies with their employment law obligations.

This creates problems for employers as, quite reasonably, there is likely to be some anxiety and resistance from these employees about the prospect of having to return to work. Employers will need to be co-operative with these employees in particular in order to find an adequate solution.

As shielding has now ended these employees will no longer be eligible for statutory sick pay if they remain off work – unless they develop Coronavirus symptoms, or someone they know develops symptoms and they are told to self-isolate and cannot work from home.

The furlough scheme can however still be used for employees in this situation if the employer is happy to do so. The furlough scheme has been extended until 30 September 2021.

Shielding – 7 key principles employers should follow

Now that these restrictions have been lifted, there are 7 key principles that the government has advised employers to follow when ensuring a COVID secure workplace when employees are asked to return to the workplace:

• Complete a COVID-19 risk assessment and share it with staff.
• Clean more often (especially surfaces that are being touched a lot) and ask staff and visitors to use hand sanitisers and wash their hands frequently.
• Ask your visitors to wear face coverings where required to do so by law.
• Make sure everyone is social distancing and make it easy to do so by putting up signs or introducing a one-way system.
• Increase ventilation by keeping doors and windows open where possible and running ventilation systems at all times.
• Take part in the NHS Test and Trace by keeping a record of all staff and contractors for 21 days.
• Turn people with Coronavirus symptoms away.

Many employers will also wish to introduce regular testing of employees as part of these measures.

The Health and Safety Executive has also published guidance on protecting vulnerable workers.

Can employees that have been shielding refuse to return to work?

Employees may be able to refuse on the grounds of whistle blowing. Remember, employees have statutory rights which protect them from any detriment or dismissal when they have decided not to return to work or to leave work in circumstances of danger where the employee reasonably believed this danger was serious or imminent. The employee’s belief must be both genuine and reasonable. If they cannot reasonably avert the danger, then the employee is entitled to get out of harm’s way. It will therefore be crucial for employers to show that there is no serious or imminent danger. Employers should try and ensure that workplaces are safe by following the above 7 principles.

Employees are also entitled to take appropriate steps to protect themselves or other persons from the serious or imminent danger. This may be relevant for employees who live with a family member who has been shielding and reasonably believe that any return to work would put that individual in danger.

What should employers be doing to ensure safety when workers can return?

The most important thing that employers should be doing is carrying out consultations with their employees, listening and talking to them about the work and how risks will be managed. This should involve reaching out to understand their concerns, communicating what steps have been taken to reduce risk and discussing if anything more can reasonably be done to address the concerns. This is particularly relevant for shielding employees who will arguably have greater concerns about any associated risks with returning to work.

Employers should also be actively demonstrating that they have properly assessed the risk and have taken appropriate steps to mitigate these risks by sharing their risk assessment through a notice on their website or displaying it clearly on notice boards within the workplace. Involving employees in discussions and demonstrating that risk assessments have been carried out will indicate that the employer is taking their employees’ health and safety seriously.

Employers should consider the guidance in the first instance and follow it properly. The extent to which the employer has complied with government guidance, and clearly communicated this to the individual, will certainly be relevant (although not necessarily determinative) of whether a fear of danger is deemed reasonable.

Further government guidance on the proposed return to the workplace and updated social distancing and other advice at work is expected by the end of May. Pending this advice, many employers will wish to extend their current temporary arrangements, so that longer term decisions can be made with the benefit of this advice.

Are there any specific rules for the clinically vulnerable employees?

Although the clinically vulnerable are no longer required to shield the suggestion is that employers should give them “safest available on-site roles” if they cannot work from home. This could involve providing a special area within the workplace for that individual, which would allow for them to stay 2m away from others and, if this is not possible, employers need to carefully assess whether this is an acceptable level of risk. A risk assessment should be carried out for individuals in the vulnerable groups in relation to their travelling to and working at the particular workplace.

Referring back to an employee’s statutory protection, if a risk assessment is not carried out or if the risks cannot be averted or minimised, it would seem reasonable for the affected employee to believe that there was an ongoing and serious imminent danger and that they could not reasonably be expected to return to work or that they should limit their working activities in some ways.

Some vulnerable employees may also qualify as “disabled” under the Equality Act and employers should consider if there are any reasonable adjustments that can be made to help those individuals back to work. For example, a consideration of their work station requirements and equipment, or whether reduced hours to phase them back into work may assist.

Are there any other solutions?

Employers will need to consider alternatives as to how to manage employees who refuse to return to work. The following are some alternative measures that an employer could consider:

• Put them on sick leave

Although the entitlement to claim SSP for these employees has ended from 1 April 2021, some employers may have a company sick pay scheme which they could use to place clinically vulnerable employees on sick leave if they cannot return to work due to the risks associated with a return. You would likely need some medical evidence to confirm the inability to return.

• Temporarily adjusting duties to allow home working to continue

As above, employers should consider whether they can temporarily alter duties to allow the employee to work from home. This would include thinking about tasks that could be done in another way that means the employee doesn’t need to go into work, for example, customer consultations online, checking in with sites virtually, talking to managers about work that needs to be done using email, phone and conferencing.

• Suspending them on full pay

Employers could explore the option of suspending such employees on full pay until it is safe for them to return to work. However, this may not be an acceptable commercial solution for some employers due to the costs of doing so, particularly as it may be difficult to assess when it would be safe for those individuals to return.

• Allowing them to take annual or unpaid leave

Employers could ask those employees to take annual leave or take unpaid leave until it is safe for them to return. However, it may be difficult to agree this with an employee who is unlikely to accept unpaid leave but, equally, they may feel this is the best option to protect themselves from the risks whilst keeping their job.

• Disciplinary action

It could be possible for an employer to take disciplinary action against an employee who refuses to return to work on the basis that it is a breach of an employer’s reasonable instruction. However, employers need to tread very carefully if they decide to take this option. They must ensure that they have taken all appropriate steps to make their workplace COVID secure as employees are protected by the statutory rights mentioned above. This option may be more appropriate where employees who are not clinically vulnerable are refusing to return to work as theses employees are, arguably, less likely to prove a reasonable belief in an ongoing and serious imminent danger.

If you are an employer and would like any advice on the implications of shielding employees returning to work, please contact a member of the Employment team.

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