Do employers have a duty to take special measures to protect those employees who are most at risk if they are exposed to coronavirus?
Employers should be aware of government guidance on social distancing and shielding, which sets out health conditions that could cause a vulnerability to becoming seriously ill from coronavirus (COVID-19). People at particular risk include those with weakened immune systems, older workers, and those with long-term conditions like diabetes, asthma, cancer, heart disease and chronic lung disease.
Individuals at the highest risk of serious illness from coronavirus will have received a letter from the NHS advising them to "shield". The government guidance refers to this group of people as "clinically extremely vulnerable". They are strongly advised to stay at home as much as possible.
Government guidance on social distancing states that anyone who has an underlying health condition listed in the guidance, is aged 70 or over, or is pregnant should stay at home as much as possible and take particular care to minimise contact with others outside their household. The government guidance refers this group of people as "clinically vulnerable". Given the duty to ensure the health and safety of their employees, employers should consider all measures to protect employees who are clinically vulnerable or clinically extremely vulnerable from the risk of infection.
Employers are also under special duties in relation to pregnant employees and disabled workers. In relation to pregnant employees, reg.16 of the Management of Health and Safety at Work Regulations 1999 (SI 1999/3242) imposes a duty on employers to conduct a risk assessment if working conditions could involve risk to a new or expectant mother or their baby. If the assessment reveals any risk to an employee, or their baby, the employer must follow a series of steps to ensure that they are not exposed to the risk or damaged by it. Given that government advice is for pregnant workers to work from home where possible, the employer should take all steps to make this possible. If the risk cannot be avoided, the employee's working conditions or hours of work should be altered. Where that is not feasible, they should be removed to another job or, as a last resort, suspended on full pay. However, where there is suitable alternative work within the company, the employee must be offered the work before being suspended on maternity grounds.
In relation to other vulnerable employees, such as those who are asthmatic, they may be protected by the disability provisions of the Equality Act 2010 if their condition satisfies the definition of "disability" in s.6. Where the Act applies, employers are under a duty to make reasonable adjustments, which may entail taking special measures to protect disabled staff, such as allowing homeworking.