Last reviewed 15 July 2020
The Health Secretary has announced that shielding for the most clinically vulnerable people in England will be paused from 1 August 2020. This means that those who received letters instructing them to stay in their homes for 12 weeks will be allowed to return to the workplace if they cannot work from home. Opeyemi Ogundeji, researcher and employment law writer at Croner-i, explores this in more detail below.
Shielding was introduced for clinically vulnerable people as a measure to both protect said individuals and relieve pressure on the NHS at the peak of the pandemic. Even though shielding is coming to a pause and shielded employees can return to work soon, employers still need to keep in mind that:
workplaces and spaces need to follow the new one-metre-plus social distancing rule
measures need to be put into place to ensure that those who are vulnerable are kept safe at work, if working from home is not possible
Statutory Sick Pay (SSP) will no longer be payable after 1 August to those who were told to shield. This means that claims will no longer be allowed under the Coronavirus SSP Rebate Scheme.
SSP will apply once again if another shielding letter is sent before or after the period in the initial letter has been paused
contractual sick pay is still an option for employers to consider in the interim, as well as the Coronavirus Job Retention Scheme which is still available until the end of October
some ailments on the vulnerable persons' list may be considered a disability. Individuals with disabilities are protected by law if they refuse to work where there is a likely threat to their health, so employers must tread lightly on the subject to avoid claims of discrimination.
Health and safety steps to take
Employers can implement the following provisions, some of which were suggested by the Government, and consider them reasonable adjustments for returning both shielding and other staff back to work:
avoid face-to-face seating arrangements in the office by changing office layouts
becoming more open to allowing staff to work from home as much as possible, or change shift patterns to reduce the number of staff on duty at any given time
make virtual communications a means of conducting training or meetings
put in place rules for managing social spaces/communal areas
promote regular handwashing, sanitising and workspace cleaning
being more attentive to staff mental health.
Other steps that can be taken
As guidance for employers on dealing with shielded staff is open to some interpretation, employers may be faced with further questions from affected staff about possible arrangements that can be made in light of their impending return to the workplace. We advise that employers should:
take the time to listen to employees' concerns and act accordingly, in a manner that benefits both the employee and the business as a whole
publish risk assessments online that show measures the organisation is taking to prevent a coronavirus spread
reassure staff who are shielding that the workplace is Covid-19 secure by communicating the reasonable adjustments put in place to protect them
think about allowing homeworking, where possible, if shielded employees do not yet feel comfortable returning to the office, or alternative options such as permitting the use of accrued annual leave
remind staff that the NHS Test and Trace system is in place to ensure that coronavirus activity is monitored locally, regionally as well as nationally.
It is advisable for employers to send out letters and/or emails (to personal email addresses) detailing each employee's proposed return date, the steps being taken to keep them safe, and offer opportunities for employees to express any concerns that they may have — or to request alternative working options if necessary.
The appointment of a communications co-ordinator could help towards managing the resulting impact of this as it assures staff that the business is dedicated to making sure they are well considered. This could also help to ensure that the business is aware of any problems with shielded employees who have been contacted about returning to work. This too will facilitate informed decision making on the part of the employer and gives affected employees a point of contact for any return to work queries.
Employers should take the specific circumstances of an anxious employee into consideration to aid their decision making. Unfortunately, where there are multiple employees shielding, there cannot be a “one size fits all” approach to returning them back to work as each employee will have different reasons for being concerned about returning — or some not at all. For example, one flexible working arrangement will not always work for everyone. Employers will have to communicate effectively with each affected employee to ascertain how best to move forward in ways that benefit both the employee and the wider business.
Employers should also continue to keep the situation under review. Notably, the Government has stated that they are simply 'pausing' shielding rather than putting it to a permanent end. This means that the possibility of it being reinstated is likely, depending on how the next couple of months progress with the pandemic. Employers should therefore keep in mind that they need to draw up risk assessments in preparation for a possible reinstatement of shielding rules at any time before or after 1 August.
Key dates across the UK
There are similar measures being taken in other parts of the UK where shielding is expected to end. The following dates apply to the rest of the UK:
in Scotland, people asked to shield will no longer need to from 31 July so employees can resume from 1 August
the same applies in Northern Ireland where shielding is set to end on 31 July
in Wales, shielding is said to be ending no earlier than 16 August; the Chief Medical Officer of Wales will be writing to those who are shielding, prior to this date, detailing what is to happen next.