Scrase Law Employment Solicitors

Working and shielding during lockdown #3

On 4 January 2021, Prime Minister Boris Johnson announced a further national lockdown in England.  Previous government guidance that had been in place in relation to the 4 Tier system has been superseded during this lockdown period.  Updated lockdown guidance has been published and is available online.

On 22 February, the Government announced its four-step roadmap out of lockdown in England. Our separate post on the roadmap is here.

Working during the lockdown

The general government guidance in relation to working during the current lockdown period is that employers should take “every possible step” to facilitate their employees working from home.  This includes providing suitable IT and equipment to enable remote working.

An employee can only leave their home for work if they cannot reasonably work from home.  Where employees cannot work from home, the current guidance is that they should continue to travel to their workplace.   However, there is a reminder that Covid Secure guidelines should be in place where employees continue to work in the workplace to reduce the risk of transmission.

Examples given in the guidance of people who cannot work from home include those working in:

  • critical national infrastructure
  • construction
  • manufacturing
  • childcare or education
  • essential public services
  • essential retail, such as supermarkets and pharmacies.

Shielding during the lockdown

Employers should note that there is additional guidance in place for those who are clinically extremely vulnerable (CEV).   Shielding guidance was previously paused on 1 August 2020 and the Government had updated their guidance for those who are clinically extremely vulnerable to take into account local COVID alert levels under the Tier system. 

During the current lockdown, the shielding guidance has again been updated.  CEV employees are again being “strongly advised to work from home”.   It is worth remembering that Access to Work may be able to provide support to allow employees with a disability to work at home. 

If CEV employees are not able to work from home, the current guidance (which is in place until 31 March 2021) is that they should not attend work.  The guidance sets out a number of possible options:

  • “You may want to speak to your employer about taking on an alternative role or change your working patterns temporarily to enable you to work from home where possible.”
  • “If you cannot make alternative arrangements, your employer may be able to furlough you.”
  • “As you are being advised not to attend work, you may be eligible for Statutory Sick Pay.

CEV individuals should previously have received a letter referring to the shielding guidance. The letter will act as evidence for an employer that the individual cannot work outside their home until 31 March 2021.  It will also act as evidence for SSP purposes.  The letter previously stated that the current shielding guidance would apply until 21 February 2021 but this was extended to 31 March 2021.

On 17 March 2021, the Government issued a new letter to individuals on the Shielded Patients List confirming that from 1 April they are no longer advised to shield.  From that date, the letter states that CEV individuals should continue to work from home where possible.  However, if they cannot work from home they should attend their workplace.  From 1 April, CEV individuals will no longer be eligible for SSP on the basis of being advised to shield.

The definition of those who are identified as clinically extremely vulnerable is set out in the guidance.  It includes:

  • those who have one or more of the conditions listed,
  • those whose clinician or GP has added them to the Shielded Patients List because, based on their clinical judgement, they deem the individual to be at higher risk of serious illness if they catch the virus,
  • those who have been identified through the COVID-19 Population Risk assessment as potentially being at high risk of serious illness if they catch the virus. 

Comment

Employers should bear in mind that CEV employees are also likely to have a condition that falls within the definition of disability under the Equality Act.  Existing obligations in relation to the Equality Act continue to apply and are particularly relevant to CEV employees.

As ever, government guidance is being regularly updated and amended.  Employers must keep up to date and ensure that they are acting in accordance with current guidance at all times.

Links to useful sources of information are below:

Shielding guidance

Letters to CEV individuals

Letter to CEV individuals issued 17 March 2021

Access to Work guidance

Lockdown guidance

Working safely guidance

Originally posted 20 January 2021. Updated 18 March 2021.

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©2020 SCRASE LAW LTD. THIS POST IS FOR GENERAL INFORMATION ONLY AND IS NOT ADVICE. YOU ARE RECOMMENDED TO SEEK COMPETENT PROFESSIONAL ADVICE BEFORE TAKING ANY ACTION ON THE BASIS OF THIS POST