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As lockdown begins to lift, should employers allow Clinically Extremely Vulnerable employees return to work?

We consider the employment law and liability aspects of CEV employees wanting to return to the workplace.

As the vaccine roll out continues to progress at speed and lockdown restrictions gradually ease, employers are likely to be contemplating and planning for the return to work for their employees, including those who are Clinically Extremely Vulnerable ('CEV'). CEV individuals will have received a letter from the NHS or their GP confirming their status as CEV and have been identified as such as they are at high risk of becoming seriously ill in the event of contracting Covid-19.

Since the pandemic began, those who are CEV have been advised to shield, save for a brief pause during summer whilst the infection rates were relatively low. However, the measures were brought back in force thereafter. The shielding measures are to remain in force until 31 March 2021. The government has confirmed that from 1 April 2021 employees will no longer be required to shield. Advice will remain where possible employees should work from home but if it is not they should go to work. If employees want to return but could work from home the advice below would still apply.

Current Government Advice

Government advice with respect to CEV employees is that they are strongly advised to work from home, and if this is not possible, then they should not attend work. As such, employers have been encouraged to be flexible with CEV employees in order to permit them to take on an alternative role or to change working patterns, in order to facilitate home working. In the event this is not possible, employers may (where applicable) be permitted to furlough the employee (unless they are working in the public sector and/or are not eligible), offer unpaid leave, or allow the employee to remain at home whilst on full pay. As CEV employees are expressly advised to not attend work, they may be eligible to receive Statutory Sick Pay or Employment and Support Allowance.

If an employer has opted to offer unpaid leave to CEV employees so that they do not have to attend work, extra care and caution is recommended to be taken, as concerns surrounding discrimination may arise particularly if other reasonable adjustments could be made to avoid this. On the other hand, by paying an employee full pay, whilst the risk of a discrimination complaint is not avoided, it is reduced.

Employers have a duty to take reasonable care of the health and safety of their employees and therefore have a duty to their employees to protect their welfare. We would therefore advise against CEV employees entering the workplace; as this contradicts government guidance and potentially exposes the employee to a health and safety risk, and employers to and Employers' Liability claim. This is particularly acute settings such as schools and care homes, where social distancing is not always possible, and children or residents are understood to transmit the virus whilst being asymptomatic.

What if an employee is keen to return to the workplace?

Nevertheless, if a CEV employee is keen to return to work, an employer should try to adjust their role to allow working from home, if possible. Employers should also clearly express to the employee, and document, the health and safety risks in returning. If the CEV employee still wants to go back to work, they should be asked to provide medical evidence to support a return to work and employers should carry out comprehensive risk assessments. Employers may also wish to speak with their insurers before permitting a return and ensure that any reasonable adjustments are put in place, as an employer could be leaving themselves open to a claim for compensation should a CEV employee come to harm as a result of their return to the workplace when it is not safe for them to do so, even if it is at their request.

Liability issues

If an Employers' Liability claim was brought by a CEV employee who alleged harm as a result of returning to the workplace then following government guidance and documenting the steps an employer has undertaken to protect the individual, will put that employer in a stronger position to defend any such claim. As the guidance starts from CEV employees not coming into the workplace currently, then it will be very important to be able to show the extra steps that have been taken to protect that person if they have returned to the workplace.

The Health and Safety Executive have published a useful webpage with advice for employers that can be found here. It is based on the viewpoint of CEV employees not returning to work at present.

As we begin to enter the differing phases of lockdown lifting which is likely to alter the guidance from the government surrounding CEV individuals, we will continue to keep under close review such guidance, and we are always on hand to discuss any queries which arise.

For more information contact Siobhan Hardy in our Insurance department at Siobhan Hardy or on 0113 386 2686 or Ruth Rule-Mullen in our Education department at Ruth Rule-Mullen or on 01772 220195. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Insurance department here

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