Hassle Free HR – “At Risk / Highly At Risk” Employees
Earlier in the year, the Government created two categories to describe the people who they considered to be most at risk of serious consequences, and who were most likely to require emergency medical attention, if they contracted Coronavirus. These categories were “At Risk” and “Highly At Risk”. Our advice on managing employees in these categories was as follows:
“Highly At Risk” Employees
Employees in this category:
- have severe respiratory conditions.
- have certain cancers.
- have had solid organ transplants.
- have rare diseases and inborn errors of metabolism.
- are pregnant with a significant heart disease.
- are on immunosuppression therapies that expose them to infection.
This list is not exhaustive and more information can be found here.
Employees who fit this description should have received communication from the NHS on or before 29 March 2020, which informed them of the need to remain at home / shield themselves for 12 weeks / until the end of June 2020. This was later revised and the Government update on 23 June 2020 confirmed that shielding would be extended to 31 July 2020. The communication advised these employees that they couldn’t be visited by family, conduct their own food shopping, or go to the pharmacy to collect medication. From 6 July 2020 these rules were relaxed so shielding people could meet, socially distanced, with up to 6 other people outside, and could occasionally enter buildings, although the overall advice remained that those who were shielding should remain at home as much as possible to avoid Coronavirus. These measures were put in place because people who are “Highly At Risk” are most likely to require care in the ICU if they contract Coronavirus, and unfortunately they are the least likely to survive the virus. When the risks posed to these employees are considered, it was clear that it was not safe for them to remain in the workplace whilst the UK was still experiencing high infection rates.
From 1 August 2020 onwards, shielding ceased due to the decreased amount of Coronavirus cases within the UK. The Government confirmed that people who were “Highly At Risk” should still practice strict social distancing after 31 July 2020, and it was strongly recommended that these employees should work from home to avoid contracting Coronavirus. However, where it was not possible to work from home, the employee could return to work if the workplace was “Covid-19 Secure”. If you have employees who are classed as “Highly At Risk” it is recommended that you put robust measures in place to protect them, as they are still considered more vulnerable to Coronavirus than other employees. Employers are expected to be supportive and understanding towards any anxiety that may be felt by “Highly At Risk” employees who are required to return to the workplace. Before the employee returns to the workplace, a risk assessment should be conducted with their vulnerability in mind. More information on managing an employee’s return to work can be found here.
The Government announcement on 22 September 2020 has not reintroduced shielding measures for those who are “Highly At Risk” despite the fact that case numbers and hospital admissions are rising.
“At Risk” Employees
Any employee who is aged over 70, who is pregnant, or who has an underlying medical condition that can affect their susceptibility to Coronavirus, is classed as “At Risk”. People in this category are not as vulnerable to Coronavirus as those who are “Highly At Risk”, but they are still considered more vulnerable than the average person, and were therefore advised to take precautionary measures for the same time period as those classed as “Highly At Risk” (from 29 March 2020 until the end of July 2020). You may have employees in this category who approach you and request to be managed differently to their colleagues, or you may have employees who are classed as “At Risk” but who feel able bodied and perfectly healthy, who do not want to comply with Governmental guidance. How you manage these employees should be tailored to each individual.
Managing Vulnerable Employees
Your options for managing “At Risk” and “Highly At Risk” employees throughout the Coronavirus pandemic are as follows:
- 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.
In the event of a “local lockdown” via the Three Tier System, or another national lockdown, we would recommend the following:
- Using Annual Leave; allowing the employee to utilise their annual leave if they are anxious about travelling or working around multiple people. The employee may choose to use a full week’s holiday, or a combination of holiday and unpaid leave e.g. 3 days holiday, 2 days unpaid leave.
- Temporary Variation to Working Time and Pay; agreeing to the employee remaining away from the workplace on altered pay. Understandably many employees who are classed as “At Risk” or “Highly At Risk” may want to remain at home when local Coronavirus levels are high. If this is the case, you can agree to the employee remaining at home and you could temporarily alter their pay to a specified amount. Many 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.
During the first national lockdown when “Highly At Risk” employees were advised to shield, they were entitled to receive Statutory Sick Pay (SSP) however previously SSP was not available for “At Risk” employees unless they were provided with a Fit Note by their GP or they were required to comply with the official self-isolation guidance.
Equality Act 2010
It is highly likely that any employee who is classed as “Highly At Risk” or “At Risk” 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 “At Risk / Highly At Risk” 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 “At Risk / Highly At Risk”. 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 “At Risk / Highly At Risk” 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 9 November 2020