As England enters a second period of lockdown, the rules relating to when an employee can or should return to the workplace are continually being updated. Guidance issued by the Government as recently as last week has already been superseded by new versions, as the COVID-19 situation continues to evolve.

This week has seen the introduction of the Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020 (the Regulations) and accompanying guidance, which come into force on 5 November. As an exception to the general requirement to remain at home, the Regulations state that individuals can leave home “for the purposes of work or to provide voluntary or charitable services, where it is not reasonably possible… to work, or to provide those services, from home” (our emphasis).

The updated guidance retains the previous wording that individuals should work from home where they can do so “effectively”. Arguably, the test set out in the Regulations, which unlike the guidance are legally binding, is a stricter one, and will make it more difficult for employers to allow staff back into the workplace for the duration of the lockdown.

In addition to the guidance on the Regulations, the Government has also issued new guidance on shielding for those who are deemed to be clinically extremely vulnerable.  As recently as last week, the Prime Minister stated that there would not be a return to shielding, except in those areas which are worst affected by the pandemic and for a limited period. However, new guidance, published on 4 November, states that those who are clinically extremely vulnerable: “…are strongly advised to work from home. If you cannot work from home, you should not attend work for this period of restrictions.”

Letters containing a formal instruction to shield are being sent to all those who are clinically extremely vulnerable, and workers who cannot work from home may once again be entitled to statutory sick pay, or COVID-19 pay in the NHS.

Although there are no regulations which specifically require that those who are clinically extremely vulnerable do not attend the workplace, in practice it could be difficult for employers to satisfy themselves that they can provide a safe working environment so as to comply with their duty of care in respect of the health and safety of clinically extremely vulnerable employees.

This will be the position in England until 2 December 2020, when the current lockdown is currently scheduled to end and be replaced by the previous tier system. We will be providing updates where there are further developments on this matter—you can subscribe to our mailings here.

For further information on how this issue might affect your organisation, please contact Sarah Parkinson, Chloe Edwards or Andrew Uttley