Unfortunately, we find ourselves still deep within the pandemic with no clear understanding at this time of when it is likely to start improving and rather that we face more difficult times ahead of us at least for the next month. We therefore felt that some clarity around considerations that you, as employers, may need to take in relation to your employees and may assist you at the current time especially considering the rapid spread of the current virus variant.
Clinically Extremely Vulnerable/Shielding
First, we are covering those that are considered clinically extremely vulnerable and currently shielding.
Those employees who fall into this categorically will have already been notified of their need to shield and we would expect that any more employees contacted are due to newly diagnosed conditions leading to a shielding situation. Currently all those employees who are clinically extremely vulnerable should shield until the Government restrictions are lifted. We are aware that many current shielding letters are stating up to 18th February 2021. These dates and/or further Government guidance can and will change.
Who is clinically extremely vulnerable?
- Solid organ transplant recipients
- People with cancer who are undergoing active chemotherapy
- Lung cancer patients 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
- Those 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 PARP inhibitors
- Those who have had bone marrow or stem cell transplants in the last six months or who are still taking immunosuppression drugs
- Patients with severe respiratory conditions including all cystic fibrosis, severe asthma and severe chronic obstructive pulmonary disease (COPD)
- People with rare diseases that significantly increase the risk of infections, such as severe combined immunodeficiency (SCID), homozygous sickle cell
- People on immunosuppression therapies sufficient to significantly increase risk of infection
- Problems with your spleen, for example splenectomy (having your spleen removed)
- Adults with Down’s syndrome
- Adults on dialysis or with chronic kidney disease (Stage 5)
- Women who are pregnant 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 (GPs and hospital clinicians have been provided with guidance to support these decisions).
It is not law for an employee to shield and should an employee decide to ignore the Government advice you should ensure that it is made clear to the employee that this can have implications on both the health and safety and insurance for you as their employer and also theirs and their colleagues health.
You should consider as an employer the extra precautions you will need to put in place should someone decide to ignore advice and if your insurance or health & safety procedures will cover the individual. However, the Government guide is clear that those who are deemed to be clinically extremely vulnerable SHOULD NOT attend work. Employers can Furlough staff who fall within this category.
Those who have a condition that is deemed moderate can still attend work, and employees of family members who are shielding can also attend work, but they must follow the workplace COVID rules around social distancing, hand sanitizing etc.
In addition to those above, you may have employees who really do not feel that they can currently attend the workplace (if their role cannot be performed from home working) and they have real fear and anxiety. As an employer you have a duty of care to ensure that you are supporting all your employees in the best way possible and should you find yourself in this situation then please do not hesitate to contact us and we will offer guidance and support for dealing with situations such as these. However, it is really important to try and alleviate the fears and anxiety by providing the employees with the Risk Assessments that you carried out and also provide details of what you have put in place in the workplace for social distancing, hand sanitizing etc.
What to do when someone needs to self-isolate
We have put below the types of questions we would expect from an employee and how best to respond.
WHEN MUST I SELF ISOLATE?
- When you have tested positive for the virus or have symptoms of the virus and awaiting a test
- When someone you live with has tested positive for the virus, or you have come into close contact with someone who has tested positive for the virus
- A person in your support bubble has symptoms or has tested positive for the virus
- You are requested by the NHS Test and Trace to self-isolate
- You have returned from a high- risk country
WHEN TO GET A TEST
England & North Ireland
You must be tested within 8 days of experiencing the symptoms and days 1 – 7 can be either at a testing site or a home test. On day 8 you would only have the option of a site test as it would be too late for a home test.
You should be tested within the first 3 days of showing symptoms and tests are not usually carried out after day 5. There is a different approach in Scotland in relation to when you should be tested and full and up to date details can be found here together with their test & protect approach:
The guidance is having the test within the first 5 days of having symptoms and further information is available here:
In all cases you must still self-isolate until you receive the results of your test. If you are unable to have a test, then you must still self-isolate in line with the recommendation below.
HOW DO I GET TESTED?
You can get a free NHS test should you meet the criteria which are:
- You have a high temperature
- you have a new, continuous cough
- you’ve lost your sense of smell or taste or it’s changed
- you’ve been asked to get a test by a local council
- you’re taking part in a government pilot project
- you’ve been asked to get a test to confirm a positive result
- You can also get a test for someone you live with if they have symptoms.
You can book a free test by following this link Get a free NHS test to check if you have coronavirus – GOV.UK (www.gov.uk)
You cannot get a free test if you have just returned from a high-risk country or are planning on travelling to a high-risk country. An employer would not request that an employee gets a test unless they meet any of the criteria listed.
HOW LONG MUST I SELF ISOLATE FOR?
You must self-isolate for 10 days plus the day you had the last contact with the person who tested positive for the virus or if you have symptoms ((a high temperature, a new, continuous cough or a loss or change to your sense of smell or taste) or have tested positive yourself.
You will have to continue to self-isolate longer than the 10 days should you still be experiencing any of the following symptoms
- a high temperature or feeling hot and shivery
- a runny nose or sneezing
- feeling or being sick
Full guidance on what to do can be found here:
HOW DO I GET A SELF ISOLATION NOTE?
You can request a self-isolation note if:
- have symptoms of coronavirus
- live with someone who has symptoms of coronavirus
- are in a support bubble with someone who has symptoms of coronavirus
- have been told to self-isolate by a test and trace service
Your employees may obtain a note through the online process by using the link below. Isolation notes must be provided in all cases to ensure that any payments in relation to statutory sick pay can be processed in a timely manner.
If you have concerns about the isolation note and wish to check validity, employers can do so by clicking on the link below :
WHAT WILL I BE PAID DURING SELF-ISOLATION?
For those employees asked to self-isolate and not able to claim company sick pay they will be entitled to SSP which is currently £95.85 per week. If the sickness absence is COVID related, then the waiting days have been waived so the SSP will be a day 1 entitlement in the case of self -isolation.
Employees asked to self-isolate by the NHS Track and Trace system may also be entitled to a one-off payment of £500 through the NHS Test and Trace Support Payment scheme if they are required to stay at home and self-isolate. They can apply for the NHS Test and Trace Support Payment online or through the NHS COVID-19 app.
Immunity & Vaccination
As we have all become aware there is a lot of differing opinions due to extensive social media coverage of the pandemic, so let’s dispel a myth that has come to our attention.
The latest news from Public Health England is that even though there is evidence to suggest that some people may have immunity for up to 5 months this would not stop them from contracting the virus again or transmitting it to other people. Indeed, it has been established that people have contracted the virus more than once. Public Health England are therefore reinforcing the stay home to save lives message.
If you have employees that are not following the relevant rules and regulations as they feel that they have immunity to the virus then you are quite within your right as their employer to ensure that whilst they are at work they are following the guidance, otherwise they may be subject to your own disciplinary processes.
With regards to the current vaccination programme, there are no laws that could force your employees to have the vaccination. The Public Health (Control of Disease) Act 1984 specifically states that members of the public should not be told to undergo any mandatory medical treatment, and this would include vaccinations.
It is unlikely that there would be any compulsory vaccination arrangements made by the Government within the UK as it is clear that if they were to insist on compulsory vaccination, it could give rise to objections on the grounds of individual liberty and human rights. This is owing to article 8 of the European Convention on Human Rights.
It may be that one of your employee’s anti-vaccination position could amount to a protected philosophical belief under the Equality Act 2010. If an anti-vaxxer could establish that their belief was genuinely held and worthy of respect, then they may find success at a tribunal.
Under the Health and Safety at Work Act 1974, employers may have a duty to ensure a safe working environment by enabling vaccination of their employees in circumstances where they will have close contact with the clinically vulnerable. For example, it could be argued that requiring a care home employee to be vaccinated, and disciplining them if they refuse, is reasonable because of the high-risk nature of the work, ultimately justifying dismissal or disciplinary action.
Working in the office
It is currently unlawful to enforce office working on those employees who can undertake their work fully from home and therefore a request that employees should only work from the office should not be the first consideration of any employer. However, if there is a necessity that individuals have to be in the workplace as they are unable to work from home i.e. due to access to IT such as broadband, or the job that they perform cannot be done so from home, then this is acceptable as long as the employer has met all the current COVID rules and regulations in relation to ensuring the employees safety. However, it is also set out that employers should do all that is necessary to set up employees to work from home including facilities such as IT equipment.
Furlough CJRS Scheme
There is currently no further update as to the furlough scheme other than there is increasingly pressure on the Government to extend the current furlough arrangements especially because of the current third lockdown situation. The leading HR body within the UK have written an open letter asking for the Government to consider an extension until June to minimise even more redundancies across all sectors.
With the current lockdown it is inevitable that even the most resilient workers will be feeling the pressure and it would be a good time to check in on your employees. Have you got an employee assistance programme in place to assist your employees should they need it?
Consideration could be given to resilience training for your staff or updating or putting together a wellbeing policy for your employees or perhaps a clear mental health & wellbeing strategy. We can assist you should you wish to look at some of these options so please do not hesitate to contact us and one of our advisors would be happy to discuss it further with you.
Black Mountain will of course keep you updated as restrictions or further guidance is issued.