Employers have a legal duty under Section 2 of Health and Safety at Work Act 1974 to take all reasonably practicable steps to ensure the health, safety and well-being of their employees.  This duty includes a duty to take reasonable care for their safety, and to avoid exposing them to unnecessary risks.

The Management of Health and Safety at Work Regulations 1999 already requires employers to carry out a Risk Assessment for vulnerable persons in order to assess their working activities and environment.

In light of the COVID-19 pandemic, however it is even more important that employers consider who may (perhaps additionally) be at a higher risk, and employers then have to take all reasonably practicable steps to ensure that those vulnerable persons are not placed at risk.

So, in light of the COVID-19 pandemic, who is at high risk?

There are two levels of higher risk people:

1. Clinically extremely vulnerable people are deemed to be high risk if they have one of the following medical conditions:

  • Have had an organ transplant;
  • Are having chemotherapy or antibody treatment for cancer, including immuno-therapy;
  • Are having an intense course of radiotherapy (radical radiotherapy) for lung cancer;
  • Are having targeted cancer treatment that can affect the immune system (such as protein kinase, inhibitors or PARP inhibitors);
  • Have blood or bone marrow cancer, such as leukemia, lymphoma or myeloma;
  • Have had a bone marrow or stem cell transport in the past 6 months, or are still taking immune-suppressant medicine;
  • Have been told by a doctor that they have a severe lung condition (such as cystic fibrosis, severe asthma or chronic obstructive pulmonary disease (“COPD”));
  • Have a condition which means they have a very high risk of getting infections (such SCID or sickle cell);
  • Are taking medicine which makes them much more likely to get infections(such as high doses of steroids); and/or
  • Have a serious heart condition and are pregnant.

2. People who are clinically vulnerable are deemed to be at moderate risk, and if employees have one of the following medical conditions they will fall into this category:

  • Chronic (long-term) mild to moderate respiratory diseases, such as asthma, COPD, emphysema or bronchitis;
  • Chronic heart disease, such as heart failure;
  • Chronic kidney disease;
  • Chronic liver disease, such as hepatitis;
  • Chronic neurological conditions, such as parkinson’s disease, motor neurone disease, multiple sclerosis (MS), a learning disability or cerebal palsy;
  • Diabetes;
  • Problems with their spleen – for example sickle cell disease or if they have had their spleen removed;
  • A weakened immune system as a result of conditions such as HIV and AIDS or medicines such a steroid tablets or chemotherapy; and/or
  • They are seriously overweight a body mass index (BMI) of 40 or above.

Employees may also be deemed to be at moderate risk if they are pregnant or aged 70 or over.

It is worth noting that there may also be other circumstances that make employees more vulnerable, in particular employees who live with either clinically vulnerable or clinically extremely vulnerable people. Those employees and their situations/risks will also need to be taken into account and steps taken to assist them to reduce the risk for them, for example carers of relatives who may have illnesses that mean that they are vulnerable.

What does the government guidance say in respect of those employees who may fall into the high or moderate risk categories?

1. High Risk

The Government guidance states that if an employee is at high risk, they have been requested to take additional action to prevent themselves coming into contact with the virus.  Employees in these categories have been strongly advised to stay at home as much as possible and to keep visits outside to a minimum – these people are being “shielded”.

In respect of these people therefore the Government guidance is clearly that they should not be in the workplace, and the advice should be that employers should, wherever possible, support employees in this position to abide by this guidance and stay at home.

If an employee in this category contracted COVID-19 at work, then an employer is unlikely to be able to defend a personal injury claim if the employee had been required to attend work [or if the employer had not counselled them as to the risks of attending].

2. Moderate Risk

People at moderate risk have been informed that it is important that they follow the advice on social distancing, which means that they should stay at home as much as possible, although the guidance is slightly more relaxed in that if they cannot work from home, employees are able to attend the workplace and are allowed to go out of the house for essential activities such as food shopping or exercise.

Employers therefore need to take into account the vulnerabilities of employees that fall into this category, and ensure that appropriate steps are taken to enable those employees to return to work, but maintain social distancing as far as reasonably practicable.

If employers haven’t taken into account the higher risks to their employees who are vulnerable, and then taken steps to mitigate that risk, there is the risk of a claim being brought by that employee should they contract the virus having been required to come back to the workplace.

Risk Assessment

Whatever the vulnerabilities of those employees, it is of paramount importance that employers undertake a risk assessment, and that they then put in place appropriate practices and procedures to protect those employees accordingly.

Whilst it may be the case that a risk assessment is already in place for those employees who are vulnerable, the advice should be that a specific COVID-19 risk assessment is undertaken to ensure that if they do return to the workplace, that they are able to work safely and that the risk to them as a result of the pandemic is reduced to the lowest level practicable.

Employers in their risk assessment will need to decide upon appropriate mitigating steps depending upon what category of risk they are (high or moderate), to reduce the risk to those employees in the workplace.

What steps can be taken to reduce the risk of those employees coming into contact with the COVID-19 virus will be very much dependent upon the employee and capabilities / individual circumstances of the business.

It is however important that employers liaise with employees and that the decision as to what steps are appropriate and acceptable in their individual circumstance is made on a mutual basis. The aim is that where employees are to return to the workplace (if they cannot work or work from home), that they feel safe in doing so.

So practically, what mitigating steps may be available to employers if their employees are either at high or moderate risk?

  • Enabling employees to work from home is the obvious first step that employers should look to take, and in which case employers should ensure that as far as reasonably practicable, employees have all the necessary equipment to enable them to undertake their job from home.Employers should take steps to ensure that they stay in contact with home workers and monitor their well-being accordingly.
  • If employees cannot work from home in their current role:

         a. Employers should consider whether there is an alternative role that that employee could undertake that could allow them to work from home.

         b. If that employee is not able to work from home at all, consideration should be given to providing that employee with the option of the safest available on-site role to enable them to stay 2 metres away from others.

         c. If none of the above options are possible, and an employee will have to spend time within 2 metres of others, it is recommended that a further risk assessment is undertaken by the employer to decide whether or not this is an acceptable level of risk in the circumstances.

         d. If that risk is not acceptable, then employers should consider whether that employee should be returning to the workplace at all at this stage.

If you require any further guidance or advice in respect of considerations for or dealing with vulnerable employees, or should you have any other health and safety queries, please do not hesitate to contact the team at Prettys on 01473 232121.

Louise Plant
Senior Associate