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The clinically extremely vulnerable can now return to work – or can they?

03 August 2020

From 1 August the clinically extremely vulnerable no longer need to “shield” due to the risk of Covid-19, and can potentially return to work. The government has amended its workplace guidance accordingly, but at the time of writing some of this information is confusing and contradictory.

On 1 August 2020 shielding was “paused” for the clinically extremely vulnerable – people with specific medical conditions which mean they are particularly at risk from Covid-19. The government’s guidance on shielding and protecting people who are clinically extremely vulnerable now states, “you can go to work as long as the workplace is Covid-secure, but should carry on working from home wherever possible”.  This guidance also suggests that they may be able to take up an alternative role or change working patterns temporarily.

The government’s guidance on working safely during coronavirus has also been updated.  The 14 guides on different types of workplace each contain a section on “Protecting people who are at higher risk”, which deals with the clinically extremely vulnerable.  Unfortunately, at the time of writing it appears that not all of the guides have been amended correctly.

The majority of the guides provide the following advice:

  • The clinically extremely vulnerable should work from home wherever possible.  This indicates that an employer should not require an individual to return to the workplace if home-working is available, even if other employees are being asked to return – it is not a simple return to the workplace for everyone.
  • Otherwise, they can now return if Covid-secure guidelines are in place, but they should be offered the option of the safest available on-site roles, enabling them to maintain social distancing guidelines (2m, or 1m with risk mitigation where 2m is not viable).
  • It may be appropriate for these individuals to take up an alternative role or adjusted working patterns temporarily.

This seems relatively clear – home working if possible, and otherwise as safe a return to work as can be arranged, which may involve temporary changes to roles or working patterns.  However, some of the guides contain different wording.

The guides for close contact services, construction and other outdoor work, contain the alternative sentence, “it may not be appropriate for clinically extremely vulnerable individuals to take up an alternative role or adjusted working patterns temporarily” [our emphasis].  It seems strange to have this sentence in guidance intended to assist with a return to work and there is no obvious reason why this should be different from the majority of the other guides.  We think this is a typographical error and the word “not” should be disregarded.

Five guides simply contain the same wording as prior to 1 August, and it appears they have not been updated at all (heritage locations, hotels and other guest accommodation, performing arts, providers of grassroots sport and gym/leisure facilities, and the visitor economy). They still refer to the clinically extremely vulnerable being advised not to work outside the home if the prevalence of disease in the community is very high. They also have specific information about clinically vulnerable individuals being helped to work from home (e.g. those over 70 or with certain health conditions) which does not appear in the other guides. There is no obvious reason why these sectors should have different guidance which does not fit with the general guidance for the clinically extremely vulnerable.  It may be an updating error, in which case hopefully it will be corrected soon.  If not, it is confusing to have retained old guidance for these sectors without a clear explanation of the reason.

Most of the guides also say that “particular attention” should be paid to people who live with clinically extremely vulnerable individuals.  No further information is provided on what this means in practice, but employers should be sensitive to workers in this situation by offering home working or the safest available roles, and assess in discussion with the worker what is an acceptable level of risk.

Some of these anomalies in the guidance may be corrected shortly.  It is also important to note that shielding may be re-started for some or all clinically extremely vulnerable individuals if levels of infection rise again, which is already happening in some parts of the country.  Many people in this situation may not feel safe coming to work at the moment.  There is no right to statutory sick pay while shielding is paused, but it is still risky to insist on a return to work for the most vulnerable, who may well also be disabled for the purposes of discrimination law.  Although furlough may become unaffordable as levels of employer contribution rise over the next three months, employers should still be willing to discuss options such as unpaid leave for those who have been shielding and continue to feel unsafe.

For more information on the return to work see our flowchart staffing decisions when reopening workplaces and FAQs on staffing decisions when reopening workplaces.

 

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