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

On 17 March 2021 Health secretary Matt Hancock confirmed earlier government indications that the shielding programme will end on 31 March 2021 as part of the roadmap for easing England out of lockdown. A summary of the position in other parts of the UK appears below.

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 CEV:

  • 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.

From February 2021 the definition of CEV people was expanded to include an extra 1.7 million people with certain health conditions. 

A further group are deemed vulnerable due to a combination of less serious conditions and risk factors.

(Note that CEV 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 from 1 April 2021

UK government guidance for clinically extremely vulnerable (CEV) people in England has been updated in accordance with the roadmap out of  national lockdown. The Government has confirmed advice and next steps effective from 31 March 2021 in England to keep CEV people safe; the advice will be similar to that when shielding was paused previously.

A letter has been sent to affected households advising that with effect from 1 April clinically extremely vulnerable people are no longer advised to shield. This is part of the overall roadmap easing the whole population out of the national restrictions. CEV pupils and students can also return to their school or other educational settings.

The background to stopping advising shielding beyond the end of March 2021 is that all of those on the shielding list should have been offered a first and second doses of the vaccine by the end of March.

Precautions
Although clinically extremely vulnerable people are no longer advised to shield from 1 April 2021, it is still recommended that they take extra precautions while the virus is still spreading including:

  • Continuing to work from home where possible, but if working from home is not possible CEV people can attend the workplace. Employers are required to take steps to reduce the risk of exposure to COVID-19 in the workplace and should be able to explain the measures in place to keep staff safe at work.
  • Keep the number of social interactions low. This is at least until the social distancing rules are eased more widely from May or June 2021 onwards.
  • Reduce the amount of time in settings where social distancing can’t be maintained.
The new provisions are not rules but advice covering socialising, travel and going to work and school, so clinically extremely vulnerable people  can choose whether to follow the guidance or not.

However, there are some regulations during the pandemic which are applicable to everyone, including CEV people, which must be followed, including rules on mixing with people from other households.
 
Support
Importantly, from 1 April 2021 CEV people are no longer eligible for Statutory Sick Pay (SSP) or Employment and Support Allowance (ESA) just on the basis of being advised to shield. Obviously if they catch COVID-19 the sick pay rules would apply.

The Coronavirus Job Retention or furlough scheme has been extended until 30 September 2021 as has the Self-Employment Income Support Scheme (SEISS). CEV people may continue to be eligible throughout this period.
 
Local council support
CEV people who registered for priority access to supermarket delivery slots, will continue to receive this until 21 June 2021.

For anyone struggling as a result of Coronavirus after 31 March 2021 councils will provide assistance wherever possible.
 
COVID-19 vaccination
Those aged 16 or older who are CEV will have been offered their first, and in many cases second, dose of the vaccine. Because no vaccine is 100% effective people should continue to take the extra precautions as the government advises that there is no guarantee people will not catch COVID-19 even after both doses.

Many shielded people who are immunocompromised may not be able to have the vaccine.

For children aged 15 and under, vaccination is not yet recommended. For children aged 12 to 15 years, vaccination may be appropriate for those with severe neuro-disabilities.

Caution, minimising risks, avoiding touching your face, social distancing, respiratory hygiene and hand washing, face coverings in shops and other enclosed spaces remains critical.

Previous advice

The previous UK government guidance for those who were shielding in England can be summarised as follows:

From 6 July 2020
People who are shielding can meet outdoors in groups of up to 6 people and 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 2020
From this date formal shielding guidance was paused across the UK in England, Scotland and Northern Ireland. 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 2020
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 2020
Government guidance for CEV people was updated to protect them from exposure to coronavirus. Local guidance applied in tiers. All people (including CEV) should continue to work from home where possible. Those who cannot work from home could still attend their workplace in Tiers 1, 2 and 3 which should be COVID-secure. Updated shielding advice applied to CEV people in Tier 4, who were advised to completely shield. CEV people should not go to the workplace if they live or work in Tier 4 areas where shielding advice was active.

From 26 December 2020

From 26 December 2020 CEV people in all tiers who were working and unable to do so from home are advised not to attend the workplace.
 
If home working is not an option employers should be able to furlough staff under the furlough scheme which applies until the end of September 2021 (as outlined below).

CEV people should also:
  • continue to maintain strict social distancing
  • wash hands regularly
  • avoid touching their face
  • minimise contact with others 
  • avoid busy areas.
Advice has also previously included trying 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.

Scotland, Northern Ireland and Wales

Scotland

Changes to guidance set out by the Scottish government are similar. All CEV people in Scotland will receive a letter from the Chief Medical Officer advising them of the updated guidance. The advice depends upon which area they are in. The shielding guidance for lockdown and level 3 areas of Scotland is still to stay at home as much as possible, not attend work or school outside of the home, and only go outside for essential reasons. Those who cannot work from home, will be able to use the Chief Medical Officer’s letter as a ‘fit note’ for as long as a lockdown is in place in their area. People in the shielding group in Level 3 Scotland are also advised to work from home if they can, but if they can’t speak to their employer about ensuring the workplace is safe. The people affected can still go outside to exercise, for essential shopping, and to attend medical appointments but are encouraged not to take public transport, and to  minimise contact with people outside their own household if possible. CEV people should maintain strict social distancing and make use of online delivery services, limiting visits to shops.

Northern Ireland

In Northern Ireland official advice until 11 April 2021 states that people who were shielding 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. There is easing of the advice for CEV people from 12 April 2021, so the previous advice regarding avoiding the workplace, shops, and pharmacies ends on 11 April 2021. Both CEV and ‘vulnerable’ people are still advised to take extra precautions. From 12 April 2021 CEV people should continue to work from home where possible. If home working is not possible they can attend their workplace, provided the employer has taken the proper measures to ensure social distancing, and they can travel to work in a way which allows for social distancing. In addition CEV or  ‘vulnerable’ should continue to be particularly careful and:

  • limit household contacts and number of social interactions 
  • follow social distancing guidelines
  • wash hands well and often and avoid touching their face particularly after touching hard surfacesuse a face covering and encourage others to do so too.

Wales

The Welsh government advice on shielding ended from 1 April 2021, so people in the shielding group (CEV) in Wales shielded until 31 March, and since then have followed the same rules as the rest of the Welsh population.

As restrictions are eased 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 from 1 April 2021. If they cannot work from home, they can attend the workplace. The government has issued updated shielding guidance for all CEV people in England which still recommends that they take extra precautions while the virus is still spreading.

CEV people who do not attend work may be eligible for the Coronavirus Job Retention furlough scheme which is extended until September 2021.

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 until social distancing ends (which may happen in June 2021)
  • if there might be a phased return of the workforce, for example some staff returning before others
  • working from home arrangements.

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.

Government help is available under the furlough scheme and employers can potentially furlough CEV and other staff until September 2021. Employers can only claim SSP for CEV staff who are formally shielding until 1 April 2021. SSP will 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 may be used 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 vaccination increases and 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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