COVID-19: Reintroduction of shielding in England – what does this mean for employers?

New guidance for vulnerable individuals

As of 4 November 2020, individuals in England who are deemed “clinically extremely vulnerable” in relation to COVID-19 are advised to stay at home at all times, unless for exercise or doctors’ appointments, for the duration of the four week lockdown.

All individuals deemed clinically extremely vulnerable have been placed on the NHS Shielded Patients List (Shielded Patients List). The definition of “clinically extremely vulnerable” can be found here.

In a further change, adults with Down’s syndrome and individuals with kidney impairment have been added to the Shielded Patients List as of 4 November 2020.

What does this mean for healthcare employers?

Individuals on the Shielded Patients List are now strongly advised “to work from home” and “if you cannot work from home, you should not attend work” until 2 December 2020, at least. This marks a return to the previous “shielding” advice, which was in place during the previous United Kingdom lockdown but was relaxed in August.

As of 4 November 2020, NHS Employers advises that “Employers will not be told directly if their staff are clinically extremely vulnerable so it is vital that managers check in with their staff regularly and ask if their circumstances may have changed, review any risk assessment undertaken and provide the appropriate support to staff”.

The data previously collected regarding staff on the Shielded Patients List will be a good starting point. We also recommend that employers issue clear communications to the workforce, inviting them to inform the organisation that they are on the Shielded Patients List with appropriate assurances regarding confidentiality and an explanation as to why this information is sought.

We recommend that employers seek to facilitate homeworking for those on the Shielded Patients List as soon as possible.

Are staff entitled to pay if homeworking is not possible? 

If homeworking cannot be facilitated for an employee on the Shielded Patients List, the individual should not work whilst shielding guidance remains in place. However, they may be entitled to receive pay during this time, although this is dependent upon whether the individual is engaged in the NHS or private sector.

Substantive NHS staff should be placed on “COVID-19 special leave” and receive full pay including all enhancements. The method for calculating a week’s pay in these circumstances, and the position in relation to bank workers and agency staff, may depend upon locally agreed policies and procedures.

Staff in the private sector who fall within this category should be classed as taking sickness absence and may be entitled to receive statutory sick pay (subject to eligibility criteria). They may also be entitled to receive occupational sick pay, depending upon their terms and conditions of employment.

Can an individual who is clinically extremely vulnerable insist on attending work?

Shielding is not mandatory; the government guidance is that clinically extremely vulnerable persons are “strongly advised” to work from home.

If there are clear reasons that staying at home would be detrimental to an individual (e.g. has their GP or Occupational Health advised that having to stay at home would impact negatively on their mental health, for example because they live alone or it increases their stress levels due to worrying about their career progression?), this could support a view that they should be permitted to come to work.

If the employer knowingly permits an individual on the Shielded Patients List to attend work, we recommend that a clear paper trail is maintained to show:

1. This is against advice;
2. What COVID-secure measures in the workplace are in place and must be followed to reduce risk; and
3. The employee is under no obligation to attend work and the employee can choose to follow the government guidance to shield at any time.

Is a requirement for clinically extremely vulnerable staff to not attend work potentially discriminatory?

Individuals on the Shielded Patient List are likely be deemed disabled for the purposes of the Equality Act 2010. As such, there is a risk that these individuals could allege that an employer’s requirement for them to not attend work is an indirectly discriminatory policy – i.e. it is a policy which places disabled people at a disadvantage.

In order to successfully defend such a claim, the employer would need to show that the policy is justified as a proportionate means of achieving a legitimate aim – in other words, that it is an effective and appropriate mechanism for removing the risk posed to shielders in the workplace.

We would therefore recommend the following:

1. Employers should explore homeworking options for clinically extremely vulnerable staff and assess each situation on a case by case basis.
2. Have clear contemporaneous records which show that the organisation has considered alternatives to requiring an individual on the Shielded Patient List to stay at home (in circumstances where they do not wish to do so) and that it has concluded that a different measure could not have achieved the employer’s legitimate aim (which is reducing exposure to risk).
3. Provide clear communication to each affected individual highlighting the Government’s new advice and that they are not required to attend work and indeed should not do so.
4. Provide remote training and learning opportunities for any individuals who are required to stay at home, to minimise the impact on their skills/professional development.
5. Keep the situation under review. This is an ever-changing world and staff should be encouraged to keep open dialogue with the employer.