The shielding programme has been expanded - what this means for employers

The government has announced that 1.7 million additional people in England will be asked to shield. Academics have conducted a COVID-19 population risk assessment to identify those people with a combination of conditions who are at highest risk of becoming seriously ill or dying if they contract the virus. However, instead of focusing entirely on health conditions, researchers looked at information about an individual's sex, body mass index, ethnicity and postcode to determine individual risk. 

The researchers only conducted risk assessments for those people who could potentially meet the threshold for being considered at high risk (clinically extremely vulnerable) but had not previously been included on the shielding lists. They didn't therefore risk assess the entire UK adult population.

The NHS will contact everyone who has been added to the list. Those who haven't already been vaccinated (estimated to be around 800,000) will also be moved up the priority list.  

The government has updated its guidance on shielding to reflect the change in approach. It advises anyone who is asked to shield to work from home and if they can't, they should not attend work. This advice applies to anyone who is shielding - even if they have been vaccinated. 

Options if your employee can't work from home

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 may 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

Government guidance '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. 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. 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 i) the workplace is legally allowed to open and ii) 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 still very high). 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.

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The TUC’s general secretary, Frances O’Grady, said the government should tell employers that new shielders must be furloughed if they cannot work from home.

“This will be a very worrying time for hundreds of thousands of working people. Some will be able to work from home – but others will not. These new shielders who can’t work from home must not lose their jobs and livelihoods overnight,” O’Grady said.

“Employers must furlough new shielders who can’t work from home to keep them and their jobs safe. Ministers must publicise the option to furlough new shielders, and should consider introducing a right to be furloughed for all those who are required to shield.””