Vulnerable Staff: Self-Isolation and Social Distancing

The most recent government advice is that anyone who develops a persistent cough or fever should self-isolate for a period of fourteen days, along with their household. In addition, the government has confirmed that for those who are over 70, have an underlying health condition or are pregnant, social distancing measures should be followed. This article seeks to address some of the most frequently asked questions when it comes to the matter of vulnerable staff.

Who falls under the category of “vulnerable”?

Employers must be especially careful and take extra steps for anyone in their workforce who is in a vulnerable group. They include, but are not limited to, those who:

• have a long-term health condition, for example asthma, diabetes or heart disease, or a weakened immune system as the result of medicines such as steroid tablets or chemotherapy
• are pregnant
• are aged 70 or over
• care for someone with a health condition that might put them at a greater risk

Should vulnerable workers be sent home from work? What if a vulnerable worker refuses to go home?

The government has only issued “guidance” on the matter of vulnerable people and as yet, there is no legislation in place which requires vulnerable to self-isolate or social distance. Similarly, there is no legislation in place which gives employers a right to send vulnerable workers home.
If a vulnerable worker who is asymptomatic and who has not received official medical advice to refrain from working, refuses to go home, an employer is therefore unable to force them to do so. An employer can however, choose to suspend a vulnerable worker on medical grounds or on Health & Safety grounds if they would prefer them not to be at work although any suspension would be on full pay.

Can I ask vulnerable staff to homework?

Yes. If an employee can do their job from home this is an acceptable request to make. In the case of pregnant workers, employers should ensure that a proper Health & Safety risk assessment is carried out.

Do employers need to pay staff who are not showing symptoms of coronavirus but who are self-isolating or social distancing due to their vulnerable status?

Much depends on whether the individuals in question are willing and able to work from home. If the employee is staying at home due to the social distancing or self-isolation advice and no one within their family is ill, unless there is an incident of Covid-19 in the workplace (therefore making it unsafe for them to be on site), there would be no requirement to pay if the employee was unable and unwilling to work.
If an employee was willing and able to work from home, then they would be entitled to full pay for all work undertaken.

What happens if a pregnant employee is self isolating and is within 4 weeks of her due date?

This is a very tricky question to answer and you advised to take specific advice from your Employment Advisor! There are numerous considerations in relation to pregnant employees who are within 4 weeks of their due date, at which point in normal circumstances their maternity leave would start automatically if they were absent from work with a pregnancy related condition. Arguably, self-isolating due to pregnancy could be considered to trigger maternity leave in the last four weeks of pregnancy but the facts of each individual case will differ.

How should I record absence from work for the vulnerable who are self-isolating or self-distancing?

Our advice is that the absence should be recorded as sickness absence, even when the employee may be asymptomatic and only remaining away from the workplace on government advice. To avoid claims of discrimination, employers are strongly advised to giving consideration to excluding this absence from any triggers for sickness monitoring or review meetings.

What about employees who aren’t vulnerable themselves but who live with a vulnerable individual?

Employers should ensure that they take reasonable steps to ensure that any person with whom an employee shares a home with is not placed at a disadvantage through their work.
Employees who live with vulnerable people are being advised to self-isolate and social distance so homeworking could be suggested. If homeworking is not an option, SSP would be due for any absence from work on grounds of self-isolation if a member of the household displayed symptoms of Coronavirus. In the absence of a homeworking opportunity or valid case of sickness, an employee could be asked to take either unpaid leave or, annual leave if they wanted to remain absent from work to prevent a household member from becoming ill.

Will the Equality Act 2010 apply to self-isolating and social distancing of vulnerable workers?

Yes! Normal employment legislation is still effective at this time. When dealing with vulnerable workers, employers must ensure that they do not act in a discriminatory way when it comes to older, pregnant, disabled employees, for example and that they make reasonable adjustments where necessary