Can employers ask clinically extremely vulnerable people to return to work on 19 July?

On Monday 19 July most COVID-19 restrictions in England will end - including the government's instruction to 'work from home if you can'. 

The government expects that workers will gradually start to return to their offices, even if they can work from home. But, with infection rates increasing rapidly again, where does this leave those people who are clinically extremely vulnerable (CEV) and were asked to shield in the past as well as those in higher risk groups?

What does the government say?

Government guidance: how to stay safe and help prevent the spread from 19 July asks employers to consider:

• cleaning surfaces that people touch regularly
• identifying poorly-ventilated areas and taking steps to improve air flow
• ensuring that staff and customers who are unwell do not attend the workplace 
• communicating to staff and customers the measures you have put in place

Individuals are asked to practice 'key behaviours' to keep themselves and others safe. These include wearing face coverings in crowded areas such as public transport, spending as much time outside as possible (or letting fresh air into homes and workplaces) and minimising the number, proximity and duration of social contacts.

The government has told clinically extremely vulnerable people to follow the same guidance as everyone else and to 'think particularly carefully about precautions [they] can continue to take' because they remain at a higher risk of becoming seriously ill if they catch COVID-19 .

These precautions are included in new guidance on protecting people who are clinically extremely vulnerable from COVID-19. It sets out fairly generic advice (get vaccinated, socialise with others as much as possible outside and try and limit contact to those people who have been double vaccinated). 

In the context of work, it emphasises the importance of risk assessments and signposts where individuals and businesses can find other information. It contains a link to the Health and Safety Executive's webpages on protecting vulnerable workers during the coronavirus pandemic. That advice does reference the changes taking place on 19 July, but still recommends allowing CEV people to continue to work from home or using the furlough scheme (which is available until the end of September) if they can't do so.

What options do you have if the employee doesn't want to return to the workplace? 

It's up to individual employers to decide when to re-open their office spaces, whether to limit numbers and to determine which roles to prioritise in terms of returning to work first. 

It makes sense to have separate conversations with anyone who is worried about returning to the workplace, including those who are CEV. Talk them through the steps you have put in place to keep them safe and consider other options if they don't want to such as: 

1. Continuing to allow them to work from home on a temporary or permanent basis. You might find our blog about dealing with flexible working requests from someone who has been working from home during the pandemic helpful.

2. Asking them to temporarily change their job role to one that reduces their risk. Anyone who is CEL s likely to be disabled within the meaning of the Equality Act 2010. If you are asking everyone to return to work this will, potentially, put disabled people who are included in the CEL group at a substantial disadvantage because it will expose them to a higher level of risk when compared to others who aren't in this group. That means that you must take reasonable steps to avoid the disadvantage. One option is to move them - by agreement - to a role that poses the least risk to them. For example, if your they work in a public facing role (such as a busy reception) can you move them into an admin role which doesn't bring them into contact with very many people? 

Can CEV staff argue that the workplace is dangerous if we've followed all of the COVID-safe recommendations and they've been vaccinated?

Bear in mind that even though most restrictions will be lifted on Monday, many vulnerable people are extremely nervous about returning to normal. Infection rates are extremely high and vaccinations don't provide 100% protection. Plus, there's emerging evidence that some immunocompromised and immunosuppressed individuals may not respond as well to COVID-19 vaccines as others.   

Clinically extremely vulnerable people are protected if their workplace poses a serious and imminent threat to their health. Under sections 44 and 100 of the Employment Rights Act 1996, workers are protected from being subjected to a detriment (such as being suspended or having their pay deducted) or being dismissed for exercising their right to leave their workplace. 

To be protected, the employee must have a 'reasonable belief' that their workplace poses a serious and imminent threat to them, or to others - including members of the public and their own families. Anyone who has one of the medical conditions that makes them extremely vulnerable to becoming seriously ill or dying from coronavirus may still be able to establish a reasonable belief because of their status - even if they have been vaccinated. Therefore, even if you are convinced that your workplace is safe, you should listen to concerns raised and try and agree a way forward.

Please take advice if you're not sure how to deal with these sorts of issues.

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