The government has “strongly advised” people over 70 years old, those who are pregnant and those with underlying health conditions or compromised immune systems to socially distance themselves, with even stricter advice for certain groups including those undergoing active radiotherapy or chemotherapy.

In this context, continuing to require these vulnerable employees to come into work could put employers at risk of claims from these employees of a breach of duty of care. It would therefore be sensible for organisations to discuss with these employees the options available to them and make it clear that they are not required to come into work due to their vulnerable status. It may be that the employees in question choose to continue coming into work anyway, in which case there are certain things that employers can do to protect them.

Some options not involving the vulnerable employees coming to work might include:

• Working from home full-time where possible, with adjustments to duties where necessary to enable this to happen
• Temporary redeployment to duties which can be carried out remotely, again with adjustments where necessary
• Temporary swapping of duties with less vulnerable colleagues (with those colleagues’ agreement)
• Vulnerable employees to take annual leave, furlough leave (if applicable), annual leave or part-time hours as a measure to protect health and safety. If such solutions are being contemplated for other employees, it is worth offering them to vulnerable employees as a priority.

If the employees do want to come into work and/or the above options aren’t possible, then consider the following:

• Whether they can perform duties at a distance (2 metres plus) from other colleagues
• Provide them with surgical gloves to avoid skin-on-skin contact
• Encourage them to take special care with personal hygiene
• Allow them the opportunity (if possible) to adjust their hours so that they travel to work at off-peak times

Note that to the extent that vulnerable employees are advised to stay at home by Public Health England, then they will be deemed to be sick for Statutory Sick Pay (SSP) purposes and they should be at home and paid at least SSP if they are not able to work from there. Employers could consider offering full contractual sick pay as well.

To discuss further, please contact a member of the Kemp Little employment team.

Find all our Covid-19 related advice here.

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