What changed on 1 August?
In conjunction with the shift in the Government’s guidance on working from home on 1 August (see here for more details) shielding was also “paused” in England on that date. So clinically extremely vulnerable (or “shielded”) employees can now return to work where it is safe to do so, but should continue to work from home where possible.
One important consequence of this shift in guidance is that shielded employees are no longer automatically entitled to statutory sick pay. Continuing furloughing arrangements remains an option where home working is not possible. However, employers have had to start contributing to wages costs for furloughed staff from August, and the Job Retention Scheme is due to end completely at the end of October.
All this means that in the coming months, the need to find a way of getting previously shielded and other vulnerable employers back to work safely will become more acute.
What do shielded employees plan to do?
The Office for National Statistics estimates that over 600,000 people in England who were identified as being clinically extremely vulnerable were working before receiving guidance that they should shield. According to a survey conducted between 9 and 16 July, 29% either did not know what their plans were, or said they would not be returning to work, with the balance planning to continue or resume working, either from home (21%) or outside the home (50%).
This information shows that while most shielded employees who had previously been working are now happy to return to work (at least in principle) there is a sizeable minority who are either unsure (23%) or have decided they will not return (6%). Together the two groups are estimated to comprise around 180,000 individuals.
What does the revised guidance say?
Revised guidance for employers states as follows:
“If extremely clinically vulnerable individuals cannot work from home, they should be offered the option of the safest available on-site roles, enabling them to maintain social distancing guidelines (2m, or 1m with risk mitigation where 2m is not viable). It may be appropriate for clinically extremely vulnerable individuals to take up an alternative role or adjusted working patterns temporarily.”
It also points out that “as for any workplace risk, employers must take into account specific duties to those with protected characteristics” and includes a reminder that expectant mothers are entitled to suspension on full pay if suitable alternative roles cannot be found. The guidance adds that “particular attention” should also be paid to people who live with clinically extremely vulnerable individuals, though it does not offer any suggestions about how this issue should be addressed.
What about local lockdowns?
The picture is complicated by the fact that shielding guidance has been paused, not withdrawn. That carries the implication that the guidance to shield could be restored nationally if the Government’s risk assessment changes.
We have also seen the emergence of local lockdowns in recent weeks. In some instances the local lockdown measures have included a requirement to resume shielding, though over a shorter period that the original national instruction.
The broader picture
The obstacles in the way of shielded employees returning to the workplace is part of a much wider picture, affecting large sections of the workforce. This includes people who while not extremely vulnerable, are disabled for the purposes of the Equality Act or are particularly vulnerable to infection for other reasons. It is likely that employers of many people in this wider group will have been using the furlough scheme to keep their jobs open, and will need to review the situation now that it is coming to an end.
Recent resurgence of the virus in many countries after it has been brought under control re-enforces the message that we are still a long way from eliminating the virus in our communities, and therefore it is worth investing in solutions that will manage the risks of transmission as well as possible. As well as physical changes to the workplace, this may mean investing still more in facilitating home working, as well as re-thinking job design and working arrangements. All these arrangements will need to be robust and adaptable enough to cope with new national restrictions or the implementation of local lock-downs.
None of this will be easy, but emerging best practice would suggest that engaging with the diverse needs of your workforce as early as possible is essential to ensure that staff can return to work with confidence. In that context, addressing the needs of the relatively small numbers of shielded staff could be a good place to start.