Government guidance in relation to individuals who have been identified as clinically extremely vulnerable and who have been advised to shield is changing in most regions this week. In this article, we reiterate some key points that every employer must know ahead of these changes.
Shielding is due to be ‘paused’ in England and Scotland with effect from 1 August (31 July in Northern Ireland and 16 August in Wales).
When shielding is paused, it follows that SSP is paused. However this can be reinstated if the employee receives a letter recommending that they shield again. The latest revision to the SSP regulations, the Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) (No. 2) Regulations 2020, makes it clear that although shielding ends either:
In the case of a local lockdown, employees could be asked to shield again, in which case they would have to stay away from work and would receive SSP. For example, the current guidance in Leicester is that those who are shielding should continue to do so until 17 August. Apparently, those who are shielding in this region will be receiving a letter confirming this advice. The guidance states this letter: “will act as evidence for your employer to show that you cannot work outside your home until 17 August, including for Statutory Sick Pay purposes. You will receive a further letter before 17 August providing the evidence for your employer from this date if advice to shield remains in place”.
If a clinically extremely vulnerable employee is able to work from home, they should continue to do so and the guidance states that employers are expected to help them do this. If this is not possible, the employee can return to work if the workplace is COVID secure. Deputy Chief Medical Officer Dr Jennie Harries first announced the change in policy on 22 June. She explained that from a scientific point of view, it was considered safe for those who are shielding to return to COVID-secure workplaces immediately, but the government had deliberately timetabled a long run in to this change to enable employers and employees to discuss arrangements for their return to work. This was to ensure employees had confidence that they are returning to a safe working environment. Anticipating employees’ concerns and involving them in COVID-secure planning will be key to ensuring this transition is as smooth as possible. It’s recommended that individual risk assessments are carried out for those who fall within either the clinically vulnerable or extremely vulnerable categories. The guidance states that particular care should also be taken in relation to those employees who live within the same household as those who are extremely vulnerable and therefore individual risk assessments should also be undertaken for them. If the risk assessment shows that it may not be safe for an employee to return to work, and it is not possible for them to work from home, they should be offered the option of the safest onsite roles which are available which would enable them to maintain social distancing guidelines (2 metres, or 1 metre plus risk mitigation where 2 metres is not viable). If social distancing is not possible, the guidance states employers should “carefully assess whether this involves an acceptable level of risk”. If it is not considered acceptable, the employer can agree a further period of leave, which would be unpaid. This is not medical suspension which is generally on full pay. The only time suspension on full pay will be relevant is where a pregnancy risk assessment has been carried out which has shown that the risks to the pregnant employee can’t be avoided. In such circumstances, if the employee is not able to work from home and there is no suitable alternative work, the employee has the right to be suspended on full pay. There is some ongoing debate concerning whether employees could use their existing protections under the Employment Rights Act for raising health and safety issues to claim entitlement to full pay in these circumstances. If you do find yourself in conflict with an employee about the safety of returning to work, it is important to seek expert advice on the position. Employees who have been shielding are likely to be viewed as disabled and therefore employers should also be mindful of their duty to make reasonable adjustments when assessing these situations.
If work is available but the employer and employee agree that the employee does not need to return because of the increased risks posed by returning to work, the employer can consider keeping them on furlough if they’ve been furloughed previously. However, in the absence of a letter telling the employee to continue shielding, this employee will not be considered to be shielding and therefore would probably fall outside the Job Retention Scheme guidance. Furthermore, there continues to be doubt as to whether it is acceptable to use the scheme where work is available for the employee. If the employer has work available and is considering continuing to keep the employee on furlough because of health reasons, they should get confirmation from HMRC that this is an acceptable use of the scheme.
You can’t underestimate the toll on employees who have been shielding for several months and the prospect of a return to work will be daunting for many. We would recommend that you treat their concerns about returning to work empathetically and to make sure you comprehensively address these concerns (with a paper trail to evidence this).
Citation’s help is only a phone call away
There’s no doubt you’ve got a lot on your plate making sure your business survives the next few crucial months and getting your duties as an employer spot on must be top of this list.
If you’re a Citation client and you need help, guidance, or advice on how to properly help a formerly shielding employee return to work successfully, just give our Employment Law team a call on our advice line on 0345 844 4848.
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