The UK government’s ‘shielding’ programme was introduced to protect extremely clinically vulnerable people from coming into contact with the coronavirus, by minimising all interaction between them and others. 

Updated government guidance summarises the clinically extremely vulnerable groups who are at very high risk of severe illness from COVID-19. There are two ways a person can be identified as clinically extremely vulnerable:

  • Having one or more of the conditions listed in the government guidance for example organ transplant recipients, those with specific cancers or adults with Down’s syndrome, or
  • Those added to the Shielded patients list because, based on doctor’s clinical judgement, they are deemed at higher risk of serious illness.

(Note that clinically extremely vulnerable people with a great risk of severe illness should not be confused with two other categories. There are clinically vulnerable and vulnerable people who employers should treat with extra caution but who were not officially part of the original or subsequent shielding programmes).

Changes in England

UK government guidance for clinically extremely vulnerable (CEV) people in England has been updated from 5 January in accordance with the announcement of a new national lockdown. All CEV people in England are advised to shield. They are advised to stay at home, only leave work for medical appointments and exercise, and not attend work even if they cannot work from home. From 17 Feb, the definition of CEV people was expanded to include an extra 1.7 million people with certain health conditions.

Previous advice

The UK government guidance for those who were shielding in England has previously been as follows:

From 6 July
People who are shielding can meet outdoors in groups of up to 6 people and create a ‘support bubble’ with one other household. They should continue to adopt strict social distancing, minimise contact with others outside their household or support bubble and stay at home where possible. Employers should continue to support shielding for those who are clinically extremely vulnerable, including offering home working if possible. If this is not feasible, then furlough pay or SSP (Statutory Sick Pay) may be available during shielding. For more information, see the government website

From 1 August
From this date formal shielding guidance was paused across the UK in England, Scotland and Northern Ireland. In Wales, it was paused on Sunday 16th August. Those who were formerly shielding could return to the workplace, if they cannot work from home and as long as the workplace is COVID-secure. The updated Working safely during coronavirus guidance now includes guidance on protecting people who are at higher risk and states that these people should carry on working from home wherever possible. Employers should offer support to employees who have been shielding (as outlined below) and the CIPD continues to urge employers to consider three key tests before bringing their people back to the workplace: is it essential; is it sufficiently safe; and is it mutually agreed? More information is available in the Return to the workplace guide.

From 4 November
From this date the government issued new guidance on shielding and the protection of CEV people stating that they should stay at home as much as possible, and were again advised to stay away from their workplace during the second lockdown. Exercise outdoors and essential health appointments were allowed. CEV people can meet up with one other person from outside their household or support bubble, for example, for exercise outdoors but should try to do so as safely as possible.
 
From 20 December
Government guidance for CEV people was updated to protect them from exposure to coronavirus. This is essentially local guidance and replaces the previous national guidance during the four-week period of national restrictions.

There are two main aspects for employers to consider:

  • General advice: Guidance on protecting CEV people based on the tiers and local restrictions in each region. All people (including CEV) should continue to work from home where possible. Those who cannot work from home can still attend their workplace in Tiers 1, 2 and 3 which should be COVID-secure
  • Tier 4: Updated shielding advice applied to CEV people in Tier 4, they are advised to completely shield for a limited period of time. CEV people should not go to the workplace if they live or work in areas where shielding advice is active. Currently this applies to Tier 4 only. The Tier 4 rules are in place for at least two weeks until a review on December 30.
If home working is not an option employers should be able to furlough staff under the furlough scheme which applies until the end of April 2021.

The previous position in each tier
  • Tiers 1 and 2: Working advice is the same in these tiers. All employees should continue to work from home where possible. Those who cannot (including CEV)  can still attend the workplace which should be COVID-secure.
  • Tier 3: The advice is where possible people should work from home as the rate of transmission may be very high. Those who cannot work from home who are concerned about attending the workplace should speak to their employer about temporary alternative roles or changes to working patterns (for example, to avoid travelling in rush hour). If there is no alternative, CEV people can still go to work. Employers should have reduced the risk of exposure to COVID-19 in the workplace and explain measures they have put in place to keep staff safe.
  • Tier 4: CEV are strongly advised to work from home because the risk of exposure to the virus in the area is very high. Those who cannot work from home, should not attend work. Employers may be able to supply temporary alternative roles or working patterns to enable working from home where possible. If employers cannot make alternative arrangements, furlough may be available until the end of April 2021 or as these people are advised not to attend work, Statutory Sick Pay (SSP) or Employment Support Allowance may be available.
CEV people should also:
  • continue to maintain strict social distancing
  • wash hands regularly
  • avoid touching their face
  • minimise contact with others 
  • avoid busy areas.
They should also try to maintain a two metres distance from others within their household. Members of the household who are not clinically extremely vulnerable can continue to attend work if they are unable to work from home.
  • In Tier 4, CEV people are advised to stay at home as much as possible and should not to go to the shops or travel at all unless essential. They should use online shopping with priority access to supermarket delivery slots or ask others to collect and deliver shopping for them. CEV people can leave home to attend health appointments or exercise with those they live with or in their support bubble. They cannot meet with friends and family they do not live with unless they are part of a support bubble. They can go outside keeping all contact with others outside of your household to a minimum and avoiding busy areas.

Scotland, Northern Ireland and Wales

Changes to guidance set out by the Scottish government are similar. Extra protection guidance is available for people at highest risk from COVID-19. Updated guidance from 5 Jan is that all CEV people in Scotland should stay home as much as possible but can still go out for exercise and essential shopping or medicines. They should minimise contact with people outside their own household if possible(previously shielding had ended from 31 July for people who had been shielding in Scotland).

In Northern Ireland official advice states that shielding has been paused from 31 July for people who were shielding there. However, guidance for CEV people from 26 Deecmber is that they should not attend the workplace if they cannot work from home. They are encouraged to continue to go outside for exercise, provided they observe social distancing when they do so.

The Welsh government ended shielding from 16 August for those who were shielding in Wales. However all of Wales is at alert level 4 and special guidance applies to people defined on medical grounds as extremely vulnerable. The updated advice from 22 Dec is that all previously shielding people should work from home if possible, and not attend the workplace if they are unable to work from home.

Eventually restrictions will be eased. Given these changes, employers should consider the following advice when preparing for the safe return of employees who have been shielding who cannot work from home to the workplace, and plan how to support those who are not yet able to return.

For employees returning to the workplace

CEV people in England must work from home if possible. If they cannot work from home, they should not attend work. The government has issued shielding guidance for all CEV people in England.

CEV people on payroll before 30 October 2020 who cannot attend work may be eligible for the Coronavirus Job Retention furlough scheme which is extended until 30 April 2021. Alternatively they may be eligible for Statutory Sick Pay, Employment Support Allowance or Universal Credit during this period of national measures.

Employers should continue to plan for their return. The physical, emotional and mental wellbeing of the workforce remains the key principle of managing any return to the workplace.

Employers must make workplaces COVID-secure

If working from home is not possible employers must show the workplace is a secure environment which is following the current social distancing guidance and physical adjustments to the workplace.

When a return to work is possible employers must carry out individual risk assessments

Employers will need to undertake individual risk assessments to support previously shielding staff to return. These should be undertaken well in advance. Matters to consider may involve adjusted duties or redeployment, provided staff agree.

Employers should speak to people individually and agree specific arrangements resulting from the risk assessments. Arrangements will depend upon individual circumstances and the increased transmissibility of the new virus strains.     

Specialist advice concerning a particular employee may be helpful, for example from an occupational health service, a doctor’s advice on the underlying condition, employment assistance programmes or counselling. You can also find information on risk assessments on the HSE website.

Acas (the Advisory, Conciliation and Arbitration Service) recommends that discussions with employees include the following:

  • when staff might return to the workplace
  • how staff will travel to and from work
  • how health and safety is being reviewed and managed, including sharing the latest risk assessment
  • any planned adjustments to the workplace, for example additional hand washing facilities, staggering start and finish times to avoid overcrowding or floor markings to help people keep 2 metres* apart 
  • if there might be a phased return of the workforce, for example some staff returning before others
  • working from home arrangements.

*From January 4 the advice in England continues to be that people from different households should stay at least two metres apart from each other.

Acas has also made some practical suggestions for managing a safe return to the workplace, such as arranging for someone to work different hours temporarily to avoid peak time travel or offering extra car parking where possible so that people can avoid using public transport.

Extra protections under the Equality Act 2010

Many CEV people with underlying conditions may meet the definition of disability under the Equality Act 2010. This means employers must not treat these employees less favourably in any way. Employers should also discuss, and then make, reasonable adjustments. These could include allowing homeworking or transferring to another role in a lower-risk area. A request for continued home working is likely to fall within the requests for flexible working legislation and count as a reasonable adjustment for those who qualify under the Equality Act disability provisions.

For CEV employees with underlying conditions to meet the definition of disability under the Act, they must have a long term physical or mental impairment which has a substantial and adverse effect on ability to carry out day to day activities. A long-term effect means something that lasts for at least a year. For example, an employee with severe asthma may be regarded as having a disability as severe asthma attacks can be life threatening and be accompanied by long term issues of feeling tired, stressed, anxious or depressed and lead to underperformance at work.

Other complex discrimination related issues can arise, as it is possible some staff members may be more at risk from the consequences of COVID-19, due to their race, age, or disability. However, the EHRC (Equality and Human Rights Commission) has emphasised the importance of not basing any ‘return to the workplace’ decisions on protected characteristics, including disability. Any incidence of this would be direct discrimination. An example of this would be employees over 60 not being informed that the physical workplace is reopening, as you do not want them to return because of the potential risk. The employer should consider less discriminatory ways of protecting older employees. For more information, see the EHRC COVID-19 guidance for employers.

For employees not yet returning to the workplace

Employers must allow CEV employees to continue to work from home where possible, in keeping with the latest government advice.

Even when restrictions are eased employees may refuse to come into work if they reasonably believe there is a serious and imminent danger or the workplace is not COVID-secure. If employers have carried out risk assessments and made the workplace as COVID-secure as possible, then anyone who still refuses to return to work may be unreasonable. In this situation, there are a variety of options to consider, including unpaid leave or furlough.

Previously, those who were shielding (but otherwise able to work) could get SSP if employers chose not to furlough them and home working was not possible. If people are well and can continue to work remotely, they should be paid as normal and they are not entitled to SSP. If a national or regional lockdown occurs (such as in Tier 4), it seems that government help is available under the furlough scheme.

Employers can potentially furlough staff until the end of April 2021. Employers can also claim SSP for CEV staff who are formally shielding. SSP will also be available for the people who:

  • have coronavirus symptoms
  • live with someone with coronavirus symptoms
  • have been notified that they should self-isolate under the NHS test and trace system. This covers people who are not unwell but have been told to self-isolate because they have been in close contact with someone who has tested positive for COVID-19.

Furlough or SSP could happen until any mechanisms making the workplace COVID secure are put in place.

If furlough or home working are not viable options, and the level of risk in the workplace cannot be reduced to an acceptable level for employees, employers may consider allowing annual leave or unpaid leave to be taken by agreement, until they feel the risk has reduced.

Employers should also consider that employees have a statutory right to unpaid emergency leave of a day or two. For example, carers may require this leave whilst arranging for the ongoing care of a family member.

Redeployment

Employers may need to consider alternative ways of working as part of the risk assessment for employees who raise underlying health concerns, or have vulnerable family members.

When considering changes to roles and working patterns, employers need to be flexible and work collaboratively with employees. The redeployment of an employee may be necessary, on a temporary or longer-term basis. For example, redeployment may be required for an extremely clinically vulnerable worker in the health care sector.

Employers should address the following points when redeploying staff:

  • Any redeployment must be agreed between the employer and employee.
  • Staff must have the appropriate skills and knowledge for the role into which they will be redeployed.
  • If changes to the role are not covered by the existing contract of employment, they may need to be re-negotiated.
  • All details of the redeployment should be clearly confirmed in writing, including any adjustments to line managers, policies and procedures and agreed roles and responsibilities.
Dismissal

This responsibility for employee’s health and safety will be of central importance if shielding staff return to work. Employees who raise justified health and safety concerns may have extra protections from detriment or dismissal for a health and safety reason.

If an employee who was formerly shielding does not want to come into work at all because of genuine fears relating to COVID-19, employers must take these concerns seriously. If an employer insists on ending homeworking with no good reason this may be a constructive unfair dismissal which could be automatically unfair, with no minimum qualifying period of employment being required to bring the claim. Acas states that, where possible, an employee who still has concerns about workplace risks should be allowed to work remotely or take time off as holiday or unpaid leave.

Reasonable fears about health and safety are also covered by Section 44 of the Employment Rights Act 1996. Employees with a reasonable belief of ‘serious or imminent danger’ to their health may be entitled to refuse to come to work, for example if they believe the workplace is not COVID-19 secure.

Ultimately, as restrictions lift, when all appropriate alternatives have been considered, if an employee unreasonably refuses to attend work and cannot work from home, employers may consider disciplinary action. The employer must consider the particular individual's circumstances and why they are refusing to attend.


Conclusion

It is inevitable that some CEV staff will be anxious about returning to the workplace if home working is not possible. Discussions with staff will be of critical importance. Managers must speak to people individually and agree specific arrangements resulting from the risk assessments, depending upon individual circumstances.

Specialist advice may be helpful, for example from an occupational health service, doctor’s advice on an underlying condition, an employment assistance programme or counselling. Shielding staff may need time to adjust, and reassurance that the workplace has been made as COVID-secure as possible.

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