Managing clinically vulnerable employees in a post-Covid era

Tracey Guest explores the legal protections for those with pre-existing medical conditions as we learn to ‘live with Covid’

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In April, as one in 13 people were estimated to be infected with Coronavirus, the UK government removed the final vestiges of Covid-specific legislation and urged the country to ‘learn to live with Covid’. 

Though welcomed by many after years of pandemic restrictions and upheaval, the move is more worrying for those individuals who, for pre-existing health conditions, are deemed ‘clinically extremely vulnerable’ (CEV). 

This has thrown up several knotty issues for employers who may understandably be concerned as to how, under the ‘Living with Covid’ strategy, they can ensure they meet health and safety requirements for all members of the workforce. 

As this increasingly complex picture of workplace safety continues to emerge, employers face a delicate situation, confronted with novel questions around legal protections, liabilities, employee rights and the potential for workplace discrimination. 

Considerations for the CEV

Despite doing away with dedicated Covid legislation, employers are still obliged under health and safety legislation to ensure employee safety in the workplace – including, but not limited to, the Health and Safety at Work Act and the Management of Health and Safety at Work Regulations.

After all, absences within the workplace due to Covid are still prolific: recent research from the IPPR has revealed that the UK workforce shrunk by 1 million compared to pre-crisis projections, with health factors responsible for almost half of the decline. 

While employers continue to have a legal duty to protect workers from harm, the most up-to-date government Covid guidance for people previously considered CEV states that this cohort (with limited exceptions) is no longer at substantially greater risk than the general population given they should have received their recommended vaccinations.

Formally then, there are no unique exemptions for CEV individuals; it’s therefore likely to be difficult for these individuals to show there is a greater risk to their health resulting from a return to face-to-face work. 

Nonetheless, employers should ensure their risk assessments are up-to-date both for the company and any individual staff requiring them. While the Health Safety Executive no longer expects every business to consider Covid in their risk assessment or have specific measures in place, there is a requirement for employers to protect those workers who come into contact with Covid, like those in health and social care caring for infectious patients. 

Caution is likely to persist among CEV employees, and employers should aim to address these concerns to determine whether any reasonable adjustments could be made to the role, especially during periods of high infection rates like winter.

Right to refuse to work? 

Refusal to work in person by CEV individuals, even if fully vaccinated and particularly if they have supportive medical advice, can be legitimate if an employer hasn’t followed or updated their risk assessment recommendations, and is therefore putting the employee at risk of harm. 

In these instances, employees may raise a grievance which, if unresolved, could result in resignation by the employee and a claim for constructive unfair dismissal. 

Without medical evidence or a recommendatory risk assessment though, CEV staff who refuse to work in person could face disciplinary action for a failure to follow a reasonable management instruction. 

Before resorting to disciplinary action, employers would be well-advised to seek to understand the employee’s concerns and consider ways they can be supported, such as homeworking. A flexible working request for instance, could provide a suitable compromise provided the outcome would not adversely affect valid business reasons. 

Who is liable?

If CEV employees are detrimentally impacted by staff with Covid, liability depends on several factors including what claims arise from the particular circumstances. 

For example, where an employee catches Covid as a result of the employer forcing them to come into the workplace, and the same employee infects a vulnerable relative with serious consequences, the employee might argue the employer is vicariously liable for the impact this has.

However, said employees would face an uphill struggle in being able to demonstrate that they contracted the virus from the workplace – particularly as routine contact tracing is no longer operational. Employers may also legitimately argue that they are complying with government guidance as well as broader health and safety obligations, and that the employee and/or CEV relative could have caught Covid elsewhere. Consequently, it is important that employers ensure their risk assessments are up-to-date to counter such arguments. 

Legislation’s gone, but Covid presses on

Even though Covid-specific legislation has been retired for now, both the virus and a certain caution, particularly among CEV employees, persists. In this ‘post-pandemic’ era, employers should heed these concerns to ensure the workplace is a safe space for all, and that among the cries for getting on and ‘living with Covid’, the vulnerable have a voice. 

Tracey Guest is head of employment law at Slater Heelis