If there is one issue that employers are particularly concerned about at the moment, it is the treatment of the extremely vulnerable.
There are two sides to the problem – situations where either the employer or the employee does not want to come onto site, and those where either party is desperate for them to return to work. Sadly, at the moment, there are often situations where whichever one side wants, the other is very nervous about.
Much has been written about shielding, which officially ended on 31st July, and employers’ duty of care to all of their employees, particularly to the clinically extremely vulnerable, to whom the employer has an even higher duty of care as this virus presents a serious and imminent danger to health.
The extremely vulnerable are clinically defined, those having an illness or a condition that would make them particularly susceptible to a coronavirus infection, and those over 70.
Since 31st July, it has been a decision for both sides, employer and employee, to make between them as to where an employee can work, and whether this is feasible. It is perfectly acceptable for the clinically extremely vulnerable to attend work, but the workplace must have been properly risk assessed, and be well enough organised for them to do so safely.
The vulnerable are also expected to work. We would advise employers to continue to talk to employees with less severe health issues than the clinically extremely vulnerable. Many of them are anxious about being at work, yet some are keen to remain working in one way or another.
The same applies to employees that live with, or support, vulnerable members of their family, as it is apparent that there are many misconceptions about what they should do.
The Government also has better data on new infections, and since the recent lockdown has introduced local COVID alert levels, with rules and advice based on the level of risk in a local area, known as the 3-tier approach.
We recommend that employers undertake an individual risk assessment with each affected employee. This risk assessment would not only identify how safe the COVID secure work environment is for them, but specify other control measures that might be needed in their case.
Such measures could include:
- Screening and ventilation around their workstation;
- Moving them to a different role where perhaps they are less customer facing, or have less interaction with other members of staff;
- Allowing them to bring their own facemask into work to reduce their exposure;
- Temporarily giving them different duties, which could be performed from home;
- Changing their hours or shift patterns so they avoid crowded public transport, or interaction with colleagues;
Every situation will be different, hence the need for an individual risk assessment. The Government has said that in cases where furloughing is not possible, SSP is the fall-back position. Harsh, because SSP is less than £100 a week, but better than nothing at all.
Even before 1st August, we were being asked how to handle the clinically extremely vulnerable employees who want to return to work. Is it a request that an employer has to grant?
Once again, it will depend on the circumstances of the individual, and the situation at work. If the employer, having carried out an individual risk assessment with the person, deems it safe, then the employee can return. It will mean implementing appropriate and possibly additional control measures.
If, on the other hand, the employer still feels that there is too high a risk to the individual, then they may have to gently suggest, or insist, they remain at home, explaining that they would be failing in their duty of care as an employer, to let them back into an environment that currently has too high a risk to them. Nor can an employer ask the employee to indemnify them against the risk if they are allowed back to work. This is a meaningless act, as the employer cannot discharge their health and safety responsibilities solely to the employee.
It is a difficult balance of risk for employers and employees, especially where some employees feel that their mental well-being is suffering more than their health by being kept at home.
And while some employers/Managers are extremely keen to see a full team once again, remember the Government’s continuous guidance – work from home wherever it is possible.
This is not simply a question of protecting the individual by keeping them at home, it reduces the demand on public transport and the transport network, and reduces the number of interactions between travelling employees before they even get to the workplace. Especially during times of high infection, such prudence has proved instrumental in managing the current outbreak.
No one is advised to follow formal shielding advice again, unless they receive a new shielding notification advising them to do so. From now on, refer employees to the new local COVID alert levels for your area. If employees are required to travel into an area at a different local COVID alert level (for example to go to work), they should follow the guidance for whichever area has the higher alert level.
Work advice for clinically extremely vulnerable people at all local COVID alert levels
Everyone is currently advised to work from home where feasible.
If people need support to work at home, or in the workplace, they can apply to Access to Work, who will provide support for the disability-related extra costs of working that are beyond standard reasonable adjustments an employer must provide. Such people are very likely to be disabled. Access to Work is a Government organisation who do much good work, advising on, and supporting reasonable adjustments, to keep people in work or get them back to work. Failure to use them may be held against employers who do not attempt to make adjustments.
If they cannot work from home, they can still go to work.
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 they have put in place to keep them safe at work, and provide the risk assessments to support their rules.
There are three ‘threats’ to employers who are not managing the risk of COVID-19, in that the Health and Safety Executive (HSE) and local authorities can take action ranging from ‘specific’ advice’, issuing enforcement notices, stopping certain work practices until they are made safe. The second threat for flagrant breaches of the rules and disregard for employees’ welfare is prosecution. Finally, there is always the possibility of a personal injury claim for employers whose negligence causes someone to suffer serious illness.
So, in summary, as we have oft repeated this mantra:
- judge each case by its merits;
- talk to each and any employee whose health (and/or age) means they are vulnerable;
- be reasonable when agreeing what actions to take; and
- document what is done;
Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.