Can ‘vulnerable’ people go back to work?

Lockdown rules are gradually lifting across the UK, and people are being encouraged to go back to work when it’s safe to do so.

But what should employers do about staff members who are classified as ‘clinically vulnerable’ in the current situation?

Clinically vulnerable people are supposed to stay at home as much as possible and take particular care to minimise contact with others outside their household. However, the government has published new social distancing guidance which suggests that, where it is not possible for these individuals to work from home, they can go to work. 

Source: Government Working safely guidance (11 May 2020) / Welsh Working safely guidance 

What health conditions count as ‘clinically vulnerable’? 

Conditions that count as ‘clinically vulnerable’ include:

  • mild to moderate respiratory disease, such as asthma, chronic obstructive pulmonary disease, emphysema or bronchitis
  • heart disease, such as heart failure
  • chronic kidney disease
  • liver disease, such as hepatitis
  • neurological condition, such as Parkinson’s disease, motor neurone disease, multiple sclerosis, or cerebral palsy
  • diabetes
  • seriously overweight (body mass index of 40 or above)
  • pregnant
  • people aged 70 or over
  • taking medicines that can affect the immune system
  • high risk of getting infections

See the complete list: NHS.uk

What to do if any of your staff are vulnerable 

If you employ a staff member who is ‘clinically vulnerable’, they are strongly advised to follow the social distancing guidance. You might wonder if you can oblige these individuals to come to work if they cannot work remotely.

Option 1 Help your clinically vulnerable employees to work from home, either in their current role or in an alternative role. 

Option 2 Where it is not possible for them to work from home, they should be offered the option of the safest available roles on-site, where they can stay at least two metres away from others.  

Option 3 Where social distancing at work is not possible, you should carry out a risk assessment to ascertain whether the level of risk is acceptable. You should also take protected characteristics into account. For example, if you can’t find a suitable role for a pregnant employee, she is entitled to suspension on full pay. 

What health conditions count as ‘extremely clinically vulnerable’? 

These people should have received a letter from the NHS telling them they should stay at home (shielding). Reasons include:

  • serious heart condition
  • organ transplant
  • cancer treatments
  • bone marrow or stem cell transplant in the past 6 months
  • cystic fibrosis, severe asthma or severe COPD
  • taking immunosuppressants

See the complete list: NHS.uk

What to do if any of your staff are extremely vulnerable 

If you have a staff member who is ‘extremely clinically vulnerable’, they are strongly advised not to work outside their home. They should continue to be shielded, and should be supported to stay at home.

What this means to you

 As an employer, if you have any ‘vulnerable’ employees, you have to consider your position very carefully.

If you ask these people to come into work, the employee could invoke their right to refrain from attending work due to a serious and imminent danger. 

If you force them to come in, you could be breaking your duty of care to your employees. This could amount to a repudiatory breach of the implied term of mutual trust and confidence in the employment contract, and could result in them making a claim for constructive dismissal and/or discrimination. 

If an employee from one of the vulnerable groups contracts COVID-19 due to your actions as their employer, they will potentially have a claim for personal injury against you. 

As you can tell, the situation is not straightforward. Your starting point is a Health and Safety risk assessment to identify what you can do in terms of social distancing in the workplace. 

If you need any help or advice, please give us a call.