Who are ‘clinically vulnerable workers’?
It is generally accepted that for some people, the risk of falling seriously ill due to contracting COVID-19 is higher than with others.
Early on in the pandemic, a number of people received a letter or email identifying them as clinically extremely vulnerable (CEV) and advising them to shield. The stance currently taken by the government is that most people who were previously identified as CEV are now adequately protected after receiving their primary and booster vaccination doses, and are no longer at substantially greater risk than anyone else. It is also said that the success of the coronavirus vaccination programme has meant that the legal requirement for shielding, and identifying people as clinically vulnerable, is no longer deemed necessary.
However, there remains a number of people who, in spite of being vaccinated, are still at higher risk of serious illness from COVID-19. In many cases, this is because a person is immunosuppressed. Immunosuppression means a person has a weakened immune system due to a particular health condition, or because they are taking medication or on treatment that is suppressing their immunity. People who are immunosuppressed, or have specific other medical conditions, may have a reduced ability to fight infections, including COVID-19. These individuals require enhanced protections, such as those offered by antibody and antiviral treatments, additional vaccinations and potentially other types of non-clinical interventions.
How are clinically vulnerable workers identified?
Clinically vulnerable workers are those individuals whose immune system or health condition means that they are at higher risk of serious illness if they contract coronavirus. Most people suffering from immunosuppression will be under the care of a hospital specialist and will usually have been identified by the NHS in one of two ways: eligibility for a third primary dose of the COVID-19 vaccine or spring booster and/or eligibility for new coronavirus treatments.
On the NHS website, the list of those who remain at risk of becoming seriously ill include anyone with: Down’s syndrome; certain types of blood cancer, like leukaemia or lymphoma; sickle cell disease; certain conditions affecting the blood; stage 4 or 5 chronic kidney disease; severe liver disease; those who have had either a bone marrow or organ transplant; certain inflammatory or autoimmune conditions, including inflammatory bowel disease or rheumatoid arthritis; AIDS or HIV causing a weakened immune system; any inherited or acquired conditions affecting the immune system or any condition that means a person has a very high risk of getting infections; rare neurological conditions, such as multiple sclerosis, motor neurone disease, Huntington’s disease or myasthenia gravis; severe problems with the brain or nerves, such as cerebral palsy; multiple or severe learning disabilities, or those on the learning disability register; those with a weakened immune system due to either medication or treatment, such as steroid medicine, biological therapy, chemotherapy or radiotherapy; or any condition or treatment that makes someone eligible for a third COVID-19 vaccination.
What legal protections do clinically vulnerable workers have?
The mandatory legal restrictions, and the previously strict guidance for employers in the context of COVID-19, have now been replaced by general public health advice on reducing the spread of respiratory infections in the workplace. This means that the Health and Safety Executive (HSE) no longer expects most businesses to consider COVID-19 in their risk assessments, or to implement specific measures in the workplace, although employers can continue to cover COVID-19 in their health and safety assessments if they so choose.
However, despite the HSE doing away with dedicated COVID-measures, employers continue to owe a statutory duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all its employees. In the context of clinically vulnerable workers, this means that careful consideration must be given as to what the risks might be at work for someone with a weak immune system and what measures can be implemented to control those risks. A vulnerable person risk assessment is essentially an assessment that examines why someone is more susceptible to risk of harm at work and the consequences if they are exposed to that harm. The employer may wish to talk to anyone at high risk of serious illness if they become infected with COVID-19, to ask them what they think they might need to keep safe. Ultimately, however, the responsibility rests with the employer to put in place appropriate measures.
Employers should also be mindful of the fact that anyone who is classed as clinically vulnerable is likely to be suffering from a serious health condition amounting to a “disability” within the meaning of the Equality Act 2010. If so, that individual is also entitled to reasonable adjustments to be made to ensure that they are not disadvantaged in the workplace when compared with non-disabled workers, including risks to their health and safety.
What is the post-pandemic situation for other vulnerable workers?
While there is no longer any requirement for employers to explicitly consider the impact of COVID-19 in their health and safety risk assessments, they must continue to comply with their legal obligations relating to health and safety in general. This means that consideration must be given to other vulnerable groups of workers who may be more likely to get seriously ill from COVID-19, including those aged 60+, expectant mothers and even the unvaccinated.
Importantly, anyone falling into any one of these categories may be at an even greater risk if they also suffer from an underlying medical condition, for example, a pregnant worker will be at a higher risk of serious illness if they have high blood pressure, diabetes, heart disease or asthma. In some cases, vulnerable workers may fall into several different categories, where the employer must assess the specific steps that will need to be taken having regard to all relevant factors for any given individual in the context of their job role.
Where the nature of the work means that a worker will come into contact with COVID-19 — either directly through their work, for example, researching the virus in laboratories, or due to their work activity, such as healthcare workers caring for infectious patients — employers must take specific steps to protect those workers. Under the Control of Substances Hazardous to Health 2002 Regulations (COSHH), employers must undertake a risk assessment that considers COVID-19 and implement measures to control the risks identified. COSHH does not, however, cover scenarios where either an employee catches a respiratory infection from a co-worker or a member of the public infects an employee through general transmission at work.
What advice should employers follow for clinically vulnerable workers?
When it comes to clinically vulnerable workers, there are specific steps that employers can take to help reduce the risk of these workers catching COVID-19, including:
- Providing face coverings: by supplying masks for those required to come into the workplace, or to spend time in shared spaces or meet with members of the public, this can help to keep them safe. The advice should be that masks are to be worn when the worker is indoors or comes into contact with other people. Employers may also want to ask co-workers or members of the public to wear face coverings to help prevent the spread of infection when they come into contact with any clinically vulnerable workers.
- Providing advice on social distancing: by advising that clinically vulnerable workers stay at least 2 metres away from people indoors or in crowded places, this can help to limit the risk of infection. Anyone at high risk of serious illness if they contract COVID-19 should spend as little time as possible in communal areas and limit close contact with others.
- Ensuring well-ventilated work spaces: by opening doors or windows to allow fresh air into indoor areas where clinically vulnerable workers are required to be, this can help to keep the workplace safe. This is because bringing in fresh air into occupied spaces can help to reduce the concentration of respiratory particles, in this way lowering the risk of airborne transmission of respiratory viruses, including coronavirus.
- Providing washing facilities and hand sanitising products: by ensuring that clinically vulnerable workers have suitable facilities to keep their hands clean, this can help to stop the spread of infection from their hands to their face. They should be advised to regularly wash or sanitise their hands throughout the course of the day.
- Maintaining a clean workplace: by putting in place measures to ensure that any regularly touched surfaces are kept clean, and that kitchens and bathrooms are kept sanitised, this can help to reduce the risk of transmission in the workplace.
- Allowing flexible working: by allowing those at high risk of serious illness to work flexibly, for example, remote or hybrid working, this can reduce the contact that they need to have with co-workers and members of the public. Different start and finish times for those required to come into work can also help to avoid peak times on public transport.
What advice should employers follow for other vulnerable workers?
For those previously identified as CEV, provided they have now been fully vaccinated, they should continue to follow the same government guidance as everyone else on staying safe and preventing the spread of COVID-19. However, even if staff are not classed as clinically vulnerable, anyone aged over 60, pregnant, unvaccinated and/or with an underlying health condition should take care to avoid coughs, colds and respiratory viruses.
Employers should therefore remain vigilant when it comes to health and safety at work in the context of coronavirus. By putting in place measures to reduce the risk of staff catching and spreading COVID-19, this can also be good for business and the employer brand. It can help to reduce coronavirus-related sickness absences. It will also demonstrate to the workforce that their health and welfare matters. There are a number of measures that can be taken to help reduce the overall risk of COVID-19 in the workplace, including:
- Asking staff to stay at home if they are unwell: if a member of staff has symptoms of COVID-19, such as a fever or dry cough, they should be advised not to come into work. Equally, if they develop symptoms at work, they should be asked to catch coughs and sneezes in disposable tissues and to put these straight in the bin. They should then wash or sanitise their hands, before notifying someone that they will need to go home.
- Maintaining a clean working environment: to help keep the workplace clean, staff should be asked to wipe down surfaces and shared kitchen equipment, and to regularly wash or sanitise their hands. Staff can be supported here by providing them with cleaning products, such as disinfectant surface spray, as well as hand sanitiser, soap and hot water.
- The current guidance on “Reducing the spread of respiratory infections, including COVID-19, in the workplace” can be found at GOV.UK. This replaces the previous guidance “Working safely during coronavirus (COVID-19)” issued during the height of the pandemic. If a member of staff is feeling poorly with cold or flu-like symptoms, they should follow the government guidance for “People with symptoms of a respiratory infection including COVID-19”. However, in accordance with their legal obligations, employers should consider how best to support and enable their workers to follow this guidance as far as possible.
Need assistance?
DavidsonMorris’ HR specialists support employers with advice on managing clinically vulnerable workers. We can help you to ensure compliance with your legal obligations while building a supportive and nurturing working environment. For expert guidance, contact us.
