Update on shielding during this lockdown

As you are no doubt aware, ‘shielding’ is the term used to describe the requirement for vulnerable people to stay at home and minimise their contact with others during the pandemic.

Recently, Government guidance was released on who should shield and what this can involve for this specific lockdown period in England, covering the 4-week duration from 5 November to 2 December 2020.

Those at high risk (‘clinically extremely vulnerable’) advised to shield

The Government has produced specific guidance for those categorised as being clinically extremely vulnerable. The provisions are not a legal requirement, however, compliance is ‘strongly advised’.

NHS guidance explains that some people are at higher risk from becoming seriously ill from coronavirus than others, and so their risk level is higher. There are two levels: 1) High risk (clinically extremely vulnerable) and 2) Moderate risk (clinically vulnerable).

Who is defined as clinically extremely vulnerable?

Although a list of the clinically extremely vulnerable was provided, employers should be aware that it may not contain all who are at high risk from coronavirus, so employees should speak to employers about their individual conditions and any vulnerabilities, complications or concerns they may have, or specific advice received from medical practitioners. It should be remembered that, the advice on how the virus affects those with different medical conditions may change as more is learnt about the virus. Employers should also be aware that if employees contact them to divulge new concerning symptoms or ones previously undisclosed (that are non-coronavirus related), medical attention and diagnosis should be encouraged to assess whether shielding may be advisable.

The Government guidance outlines two ways of being recognised as clinically extremely vulnerable:

• A person has one or more of the conditions set out in the guidance, or
• A hospital clinician/GP adds the person to the ‘shielded patients list’ because, based on their judgement, the person is deemed to be at higher risk of serious illness if the virus is contracted.

How are those at high risk being informed of the new advice?

A formal shielding notice will have been sent to those who are advised to shield. This may be produced by employees as evidence that they cannot work outside of their home until 2 December and be used as a medical note for the purposes of evidencing the need for sick pay.

What are clinically extremely vulnerable people and those who live with them advised to do in relation to work?

They are strongly advised to work from home and if they cannot work from home, they are advised to not attend work during this period of restrictions. They should also avoid all non-essential travel by private or public transport, including travelling to work. The guidance details that people who live with the extremely clinically vulnerable and who are not in that category themselves, can still attend work if they cannot work from home.

What can be claimed to financially support shielding employees?

If someone is not working due to being clinically extremely vulnerable, they may be entitled to statutory sick pay or benefits. They may be eligible for the Coronavirus Job Retention Scheme (furlough scheme) which has been extended until 31 March 2021, although it’s not obligatory for employers to furlough them. It is advisable to seek legal advice if you are unsure whether to furlough a clinically extremely vulnerable person.

Those at moderate risk and other risk factors

Those who are at ‘moderate risk’ (the clinically vulnerable) from coronavirus according to the guidance have been advised that they can go out to work if they cannot work from home, but that they should otherwise stay at home as much as possible. They still need to follow the general advice on social distancing.

Other things that can affect the risk of getting seriously ill from coronavirus, include being older (over 60 years) and also being from a Black, Asian or minority ethnic background.

Employers should be mindful of health and safety

Employers need to consider their health and safety obligations, including carrying out thorough risk assessments and taking adequate action to address concerns/risks. You can read more about health and safety issues for employers due to coronavirus in our previous article here.

What if someone who has been advised to shield wants to come to work?

Several employer clients have asked us what they should do if an employee who is shielding wants to come into the workplace. As the guidance is advice rather than a set of legal requirements, if a workplace is open and work cannot reasonably be done from home, it is strictly speaking possible to have even extremely clinically vulnerable employees attending the workplace. However, the employer will be under a duty to take adequate steps to protect health and safety and will need to make a judgement call about whether this can be achieved safely at present. In most cases it will not be a good idea for the employee to be permitted to attend the workplace, but employers may wish to discuss the situation with their employers’ liability insurers to see what their view is. They should also discuss the reasons for the employee wanting to be in the workplace with them and consider alternatives, including furlough, before deciding. Reasonable adjustments to the role or work environment may be required if the employee has a disability.

Keeping up communication with shielding employees

The decline of mental health is a particular concern in those who are shielding, due to the adverse effects of social isolation. Employers should maintain communication and consider ways to virtually interact with employees and remember to ask employees how they are managing. They should encourage employees to seek additional support if necessary, and if they have any resources, such as a counselling helpline, they should signpost relevant options.