August 21, 2020

Return of shielders hampered by lack of Government guidance for care providers

Return to work after coronavirus

The guidance does not expressly require shielders to social distance when at work. However, it requires 2m social distancing (or 1m with additional protections) when visiting supermarkets and shops. Some of the sector-specific "Working safely" guidance requires 2m social distancing (or 1m with additional protections) at work; but there is no guidance specifically for the care sector.

The woeful lack of proper guidance for the care sector leaves two key questions unanswered:

1.  Do shielders have to 2m social distance (or 1m with protections) at work?

2.  If so, and no social distancing is possible at work, would the provision of PPE sufficiently mitigate the risk to enable a return to work?

Given the importance of the care sector in the fight against Covid19, it is inexplicable that no sector specific guidance has been provided by the Government.

Can you allow shielders to return to work?

If a shielding employee cannot work from home or social distance, what can you do? Only two options are realistically open:

  Move them to a different, or varied, role where social distancing can be maintained.

  If you can’t do that, the guidance appears to prohibit a return to work. The guidance is silent on whether the provision of PPE would sufficiently mitigate the risk to avoid the need for social distancing.

Requiring or allowing a shielding employee to return to a role where social distancing cannot be maintained would, on the current guidance, carry a range of employment law and health and safety risks and associated liabilities. There is also a risk of invalidating your insurance if you bring shielding employees back to work against Government guidance.

Preparing for return to work

Where it is safe for a shielding employee to return to work it is essential that the return is properly planned and implemented to minimise the risks. We would recommend taking the following steps:

1.  Consult

Many shielders have been out of the workplace since March and will be understandably cautious about returning. Consulting about your Covid19 risk assessment and providing information about the protective measures you have put in place, will provide reassurance that it is safe to return.

2.  Listen

Shielders are likely to have a variety of concerns and queries about returning to work. These will relate to their individual circumstances, health condition and job role, so it is important to listen carefully to their specific concerns so that you can address or respond to them appropriately.

3.  Risk assess

It will be necessary to carry out an individual risk assessment for shielding employees before they return to work. Consider specific factors relevant to their health condition. For example, employees with a respiratory condition may be unable to wear PPE.

4.  Medically assess

Where it is not clear that a shielder is able to return to work due to the risks to their health, you may need to obtain a medical opinion from their GP or consultant. This will also help identify any reasonable adjustments that need to be made as most shielders will have a disability.

5.  Wellbeing support

The value of well-being and mental health support cannot be understated. Checking in with staff and sign posting them to internal or external support will help ensure that the transition back to work goes as smoothly as possible.

What alternatives are there?

If a safe return to work is not possible, there are a number of potential alternatives for you to consider, including:

•  Furlough

If you have previously furloughed shielders, you could extend the furlough period until they are able to return (or 30 October when the scheme ends). If they have not previously been furloughed for a full 3 week period prior to 30 June, you will not be able to furlough them now as the scheme is closed to new entrants. Although the cost to you of using the scheme has started to increase, you should carefully consider this option if eligible.

•  SSP

SSP entitlement for shielders ceased on 1 August. However, we have seen that many shielders have obtained a new Fit Note from their GP due to the risks to their health of returning to work or the stress and anxiety caused by a prospective return to work. In these circumstances they would be entitled to SSP.

•  Unpaid leave?

The basic position is that if an employee is not ready and willing to work they are not entitled to be paid. However, this is not clear cut in the context of the Covid-19 pandemic and the employee being prevented from working due to a Government requirement to social distance at work. There could also be potential disability discrimination risks and an assessment of whether no pay can be justified as a proportionate means of achieving a legitimate aim will be needed. Specialist advice should be sought if you are considering this option.

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