Hassle Free HR – “Clinically Vulnerable / Clinically Extremely Vulnerable” Employees 

On 31 October 2020 it was announced that those over 60 or clinically vulnerable, could be at higher risk of severe illness from coronavirus.

Advice was that they;

  • should be especially careful to follow the rules and minimise contacts with others
  • should continue to wash their hands carefully and more frequently than usual and maintain thorough cleaning of frequently touched areas in their home and/or workspace

“Clinically Vulnerable” Employees

Employees in this category are:

  • aged 70 or over (regardless of medical conditions)
  • under 70 with an underlying health condition listed below (that is, anyone instructed to get a flu jab each year on medical grounds):
    • chronic (long-term) mild to moderate respiratory diseases, such as asthma, chronic obstructive pulmonary disease (COPD), emphysema or bronchitis
    • chronic heart disease, such as heart failure
    • chronic kidney disease
    • chronic liver disease, such as hepatitis
    • chronic neurological conditions, such as Parkinson’s disease, motor neurone disease, multiple sclerosis (MS) or cerebral palsy
    • diabetes
    • problems with the spleen
    • a weakened immune system as the result of certain conditions or medicines they are taking (such as steroid tablets)
    • being seriously overweight (a body mass index (BMI) of 40 or above)
  • pregnant

“Clinically Extremely VulnerableEmployees

The Government also defined “Clinically Extremely Vulnerable” employees as those that have specific serious health conditions as follows;

  • solid organ transplant recipients
  • those with specific cancers:
    • people with cancer who are undergoing active chemotherapy
    • people with lung cancer who are undergoing radical radiotherapy
    • people with cancers of the blood or bone marrow such as leukaemia, lymphoma or myeloma who are at any stage of treatment
    • people having immunotherapy or other continuing antibody treatments for cancer
    • people having other targeted cancer treatments that can affect the immune system, such as protein kinase inhibitors or PARPinhibitors
    • people who have had bone marrow or stem cell transplants in the last 6 months or who are still taking immunosuppression drugs
  • those with severe respiratory conditions including all cystic fibrosis, severe asthma and severe chronic obstructive pulmonary disease (COPD)
  • those with rare diseases that significantly increase the risk of infections (such as severe combined immunodeficiency (SCID), homozygous sickle cell disease)
  • those on immunosuppression therapies sufficient to significantly increase risk of infection
  • adults with Down’s syndrome
  • adults on dialysis or with chronic kidney disease (stage 5)
  • pregnant women with significant heart disease, congenital or acquired
  • other people who have also been classed as clinically extremely vulnerable, based on clinical judgement and an assessment of their needs.

Managing “Clinically Vulnerable” and “Clinically Extremely Vulnerable” Employees

Your options for managing “Clinically Vulnerable” and “Clinically Extremely Vulnerable” employees are listed below.  In both cases, the employee may have a letter (either the initial letter they received in March 2020 or a recent letter), from their GP or the NHS, to confirm their condition and situation.  “Clinically Extremely Vulnerable’ employees specifically are advised to stay at home.

“Clinically Vulnerable”

  • Home working (if possible for their role).
  • Remaining at work with additional precautionary measures such as ensuring the employee will be isolated or will never be more than within 2 meters distance of a colleague or customer (or 1 meter with additional precautions such as wearing masks or using protective screens, etc.) An individual risk assessment will need to be undertaken for any “At Risk” employee who remains in the workplace. Remaining in the workplace with social distancing measures may not be possible for all roles / employees.
  • Being furloughed under the extended Job Retention Scheme.
  • Remaining at home and claiming statutory sick pay (SSP) if provided with a Fit Note from their GP.
  • Temporary Variation to Working Time and Pay; agreeing to the employee remaining away from the workplace on altered pay temporarily.  Some employers are agreeing to pay employees the equivalent of SSP, although the amount you decide is up to you. It is essential that the employee consents to this temporary alteration of pay, and that their agreement is confirmed in writing. If it is not agreed to, or confirmed in writing, you could expose yourself to a potential breach of contract / unlawful deduction from wages claim because employee pay is contractual. The agreement should the reduced rate of pay is temporary and also confirm that the rate of pay will return to normal as soon as the employee is able to return to work.
  • Taking Unpaid Leave; If an employee does not want to remain at work during this time, and you’re unable to accommodate any of the above suggestions, the employee could take a period of unpaid leave. Again, this should be confirmed in writing to clearly show the unpaid leave was a mutual decision and not something forced upon the employee.

“Clinically Extremely Vulnerable”

  • Home working (if possible for their role).
  • Being furloughed under the extended Job Retention Scheme.
  • Remaining at home and claiming statutory sick pay (SSP) if provided with a Fit Note from their GP.
  • Temporary Variation to Working Time and Pay; agreeing to the employee remaining away from the workplace on altered pay temporarily.  Some employers are agreeing to pay employees the equivalent of SSP, although the amount you decide is up to you. It is essential that the employee consents to this temporary alteration of pay, and that their agreement is confirmed in writing. If it is not agreed to, or confirmed in writing, you could expose yourself to a potential breach of contract / unlawful deduction from wages claim because employee pay is contractual. The agreement should the reduced rate of pay is temporary and also confirm that the rate of pay will return to normal as soon as the employee is able to return to work.
  • Taking Unpaid Leave; If an employee does not want to remain at work during this time, and you’re unable to accommodate any of the above suggestions, the employee could take a period of unpaid leave. Again, this should be confirmed in writing to clearly show the unpaid leave was a mutual decision and not something forced upon the employee.

Equality Act 2010

It is highly likely that any employee who is classed as “Clinically Vulnerable” or “Clinically Extremely Vulnerable” will be covered and therefore protected by the Equality Act 2010 due to the protected characteristics “disability” or “pregnancy and maternity”. Therefore, it is essential that reasonable adjustments are made for these employees, where possible, and that they are not treated less favourably than their colleagues during this time.

Family Members of “Clinically Vulnerable / Clinically Extremely Vulnerable” Employees

You may experience employees who are not “At Risk / Highly At Risk” themselves asking to remain away from the workplace for a prolonged period of time because someone within their household is classed as “Clinically Vulnerable / Clinically Extremely Vulnerable”. Employees in this position do not have a legal right to remove themselves from the workplace. Where this is the case, the employee has the following options:

  • Working from home (if possible for their role)
  • Utilising their annual leave
  • Taking a period of unpaid leave from work
  • Remaining in work and adhering to all precautionary measures that have been put in place as advised by you and the Government

It is understandable that these employees may be experiencing higher levels of anxiety than any employees who do not have “Clinically Vulnerable” or “Clinically Extremely Vulnerable” relatives living with them, but clear and reassuring communication, where you inform them of the preventative measures you’re putting in place, should hopefully help to alleviate their concerns.

Last reviewed on 11 November 2020