Guide to shielding in the new national lockdown

Clinically Extremely Vulnerable (CEV)

Those who have been identified as CEV have been advised to work from home if they can. If it is not possible to undertake their job from home, they have been advised to not attend their workplace. A formal shielding letter will be issued that will serve as evidence to an employer that they have been advised to shield. This applies to the whole of England, Wales, and mainland Scotland.

Employers may be able to furlough those who are shielding under the Coronavirus Job Retention Scheme (CJRS). If the employer decides to not use the CJRS, or is not eligible to claim through it, the employee may be eligible for Statutory Sick Pay (SSP) or Employment Support Allowance (ESA). It is likely that a CEV individual would also be covered by the Equality Act 2010 as a disabled person. As such an employer may be obliged to make a reasonable adjustment by using the CJRS. For the avoidance of doubt organisations that are in receipt of public funding are unlikely to be able to claim through the CJRS.

The NHS has published a full list of those individuals who are likely to be deemed to be CEV which can be viewed here.

If an individual has not received the formal shielding letter because they have only very recently been diagnosed with one of the conditions listed, the employer may wish to require a letter from the GP or hospital treating the individual to assess whether they may be entitled to be furloughed under the CJRS or be eligible for SSP pending the formal shielding letter. Employers should seek legal advice in this scenario.

The full guidance on shielding and protecting people who are CEV from COVID-19 can be found here.

What about those who live with a CEV individual?

Members of the household who are not CEV are advised to continue attending their workplace if they are unable to work from home.

If a member of the household has caring responsibilities for the CEV individual, then they can be furloughed under the CJRS.

What if a CEV individual wants to continue working?

If a CEV individual wants to continue working, the employer would need to consider whether its risk assessment would permit this. The employer’s duty of care to provide a safe working environment would not be overridden by the employee’s desire to continue working. As such the employer would need to consider if they can permit an employee to attend the workplace in this scenario.

As the shielding advice takes a blanket approach to high-risk conditions, it is possible that an employee may have been deemed to be CEV but in practice they are not at high risk for various factors that relate to them as an individual. As such an employer may wish to obtain an Occupational Health Report or advice from the individual’s GP before reaching a decision as to whether to permit the individual to attend the workplace. An employer may be obliged to seek such advice pursuant to the Equality Act 2010. An employer ought to seek legal advice in this scenario.

Clinically Vulnerable (CV)

Those who are deemed to be CV are not being advised to shield but only to maintain social distancing. As such if they are unable to work from home, they should attend the workplace but adhere to social distancing. If their normal role does not permit social distancing because it requires close contact, employers should consider whether temporary adjustments can be made to the role to enable social distancing. If social distancing cannot be facilitated employers should seek legal advice.

An employer cannot claim through the CJRS because an individual is CV and thus would need to have a different reason should they wish to furlough a CV individual. If an employer wishes to prioritise those who are CV for furlough, they should seek legal advice first as this may raise a risk of discrimination on the grounds of age or disability.

The NHS has published a full list of those individuals who are likely to be deemed to be CV which can be viewed here.

What if you suspect that a shielding letter may have been fabricated?

The NHS provides a service on its website to verify whether a shielding letter is valid. More information on this service can be viewed here.