New guidance on 'shielders' - what options do you have if they can't work from home?

During the first lockdown, the government introduced the 'shielding' programme which was designed to safeguard people who were clinically extremely vulnerable from being exposed to the virus. If you were shielding, you were told to stay at home. That programme was paused on 1 August and the advice changed. Shielders were encouraged to work from home, but if that wasn't possible, their employers were expected to give them the safest on site role, even if that meant doing something different from their usual duties. 

On 31 October, the Prime Minister said that the government wouldn't 'ask people to shield again in the same way again', but they did need to minimise contact with others and 'should not go to work if they are unable to work from home'. That advice was included in new guidance on 'shielding and protecting people who are clinically extremely vulnerable from COVID-19'.

Options if your employee can't work from home

The new lockdown Regulations apply to all people living in England - there are no specific provisions that just apply to people who are clinically extremely vulnerable. These require anyone who can 'reasonably' work from home to do so for the duration of the lockdown. [Our overview of the Regulations is available here.]

Alternative work

If your employee can't do their usual work from home, is there other work they can do on a temporary basis? Anyone who is clinically extremely vulnerable is likely to be disabled within the meaning of the Equality Act 2010 and you'll need to consider reasonable adjustments - such as alternative duties to enable them to continue to work. Your employee will need to agree to any changes you propose. 

Furlough

New guidance published yesterday 'check which employees you can put on furlough to use the CJRS' makes it clear that people at the highest risk of severe illness from coronavirus and those on long term sick leave can be furloughed under the extended scheme. They don't have to have been furloughed before - but you must have them on your payroll on or before 30 October. 

However, if you receive public funding, you're not expected to furlough staff. The guidance says: 'If you have staff costs that are publicly funded (even if you’re not in the public sector), you should use that money to continue paying your staff, and not furlough your staff. Organisations can use the scheme if they are not fully funded by public grants and they should contact their sponsor department or respective administration for further guidance'.

Using holiday

Another option is to ask your employee to take some paid annual leave during the period they are shielding. However, unless the employee agrees to accept shorter notice, you'll need to give them at least twice as long as the amount of holiday you want them to take. So, if you want someone to take two week's holiday, you need to give them four weeks' notice.

SSP

Anyone who has received a new 'shielding' notice from their doctor is entitled to SSP. The NHS service that allowed clinically extremely vulnerable people to request a shielding notice has been suspended. Therefore, anyone who has a condition that makes them clinically extremely vulnerable and hasn’t received a notice will need to speak to their doctor.

However, if you decide to furlough an employee instead, you can't pay them SSP. 

What about if the shielder wants to return to their workplace?

Anyone who can't work from home and wants to return to their workplace can do so provided it's covid secure. However, before you agree to allow an extremely vulnerable person to return to work, you need to make sure they understand the risks (which are potentially very high at the moment). You must also undertake an individual risk assessment and must offer them the safest possible job (with their consent). You'll also need to make sure that there are no exclusions in your employers' liability insurance policy that will invalidate any claim against you if they contract coronavirus at work.

Don't forget - you can't exclude liability for personal injury. Therefore, even if your employee agrees to sign a disclaimer, it won't help you if they do become ill or die.

If you don't think it's safe for them to return to work, you can turn down their request. However, if they are salaried, you will usually have to pay them in full because they are ready, willing and able to work.

Our Coronavirus updates

We're working hard to keep you up to date with legal developments around Coronavirus. We've set up a portal which includes lots of helpful articles and advice to help you.

If you have a query, that we haven't answered, please contact us.