How to respond to employees with underlying medical conditions who don’t feel safe returning to work

Before the COVID-19 Pandemic, this would have been a relatively simple situation to manage. The employee would visit their GP who would examine them, and if they were too unwell to attend work would issue them with a FIT note. The FIT note would provide evidence of the advice the GP had given their patient/your employee about their fitness for work. The FIT note would also include details of the ‘functional effects’ of the illness or condition to assist the employer’s considerations in helping the employee back to work.

Before the pandemic, the assumption was that healthy employees went to work, and sick employees or employees with an underlying health condition took medical advice as to whether they could attend work, with or without reasonable workplace adjustments.

At the same time, the Health and Safety Executive (HSE) set out the requirements that all workplaces had to comply with to be considered safe.

Employees with a wide range of health conditions attended work, with and without workplace adjustments.

Then the COVID-19 pandemic happened, and the world of work changed.

For the first time, the Government was putting people into ‘Risk’ groups depending upon their illness or medical condition and recommending that they ‘shield’ themselves from the outside world. This move made it impossible for some people in these groups to do any work, or than that which they could undertake from the ‘safety’ of their own homes.

The Government identified how likely an individual was of developing complications if they became infected with coronavirus (COVID_19) and assigned one of three risk criteria – High, Moderate & Low – to different health conditions.

High risk of developing complications from coronavirus (COVID-19) infection.

This list is not exhaustive but includes:

• Solid organ transplant recipients.

• People with specific cancers:
• People with severe respiratory conditions including all cystic fibrosis, severe asthma and severe chronic obstructive pulmonary (COPD).
• People with rare diseases and inborn errors of metabolism that significantly increase the risk of infections.
• People on immunosuppression therapies sufficient to significantly increase the risk of infection.
• Women who are pregnant with significant heart disease, congenital or acquired.

Moderate risk of developing complications from coronavirus (COVID-19) infection

This list is not exhaustive but includes:

People aged 70 or older (regardless of medical conditions), and

People under 70 with an underlying health condition listed below (for adults this is usually anyone instructed to get a flu jab as an adult each year on medical grounds):

• chronic (long-term) respiratory diseases, such as asthma, chronic obstructive pulmonary disease (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 cerebral palsy
• diabetes
• those with a weakened immune system caused by a medical condition or medications such as steroid tablets or chemotherapy
• being seriously overweight (a BMI of 40 or above)
• those who are pregnant.

Low risk of developing complications from coronavirus (COVID-19) infection

Employers who would ideally like an employee in a high-risk or moderate-risk group to return to work, (where they are unable to work from home) could discuss furloughing them, under the Government’s Job Retention Scheme.

If the patient is not in the moderate or high-risk groups, they are deemed to be low-risk.

Public Health England (PHE), in consultation with GPs and specialist medical consultants, attempted to identify everyone who had the conditions detailed within the high-risk and moderate-risk lists above. Whether PHE included everyone who should have been on the respective lists is uncertain. Additionally, there may be individuals with a unique set of illnesses or conditions that also make them more vulnerable to developing complications from COID-19.

Given the genuine concerns many workers are likely to have about returning to work, many may refuse to come back. There will also be others, who have milder conditions:

• e.g. they have asthma, but at a level that wasn’t considered severe enough to put them on the ‘high’ or ‘moderate’ risk. Prior to the pandemic, they were able to control their condition with an inhaler. If the working environment is made ‘Covid-secure’, (or as secure as they can be in line with HSE guidelines) then theoretically the individual is at no more risk than their general interactions in the outside world. If the employee believes that they shouldn’t return because of their condition (which may have worsened due to increase stress), the most appropriate route is for them to seek medical advice from their GP.

If an employee refuses to attend work, without a medical certificate, and an employer stops their wages or dismisses them, they run the risk of being taken to an Employment Tribunal.

If the employee believes that they had suffered a detriment or had been unfairly dismissed, they would need to rely on the wording of s.100(1)(d) and s.44(1)(d) respectively of the Employment Rights Act 1996 (“ERA”).

But this legislation doesn’t give an employee an automatic right not to return to work, and the Act’s wording is quite strong.

It states that only:

“…in circumstances of danger which the employee reasonably believed to be serious and imminent and which they could not reasonably have been expected to avert, they left (or proposed to leave), or (while the danger persisted) refused to return to their place of work…”.

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In Summary

Employers:

• Are required to provide a safe working environment, including the need to minimise the risk of infection from COVID-19.
• Should advise their employees of all of the steps they have taken to make the workplace safe as per Government guidelines.
• Who blatantly disregard what the Government expects them to implement, are more likely to be subjected to Employment Tribunal claims and HSE fines.
• Ideally, any return to work should only be done if these criteria can be met: It’s necessary, it’s safe, and where possible, mutually agreed.

Employees:

• Should attend work unless they are in a high-risk or moderate-risk group due to having one or more underlying medical conditions.
• Who are in a high-risk or moderate-risk group, should work from home if they are able. If they are not able to work from home, their employer may discuss furloughing them.
• May not be entitled to sick pay (unless possibly signed off work by their GP) if they choose to stay at home because they are worried about contracting the virus. Somebody who is classed as ‘vulnerable’ and stays at home, isn’t necessarily sick. An employer could discuss furloughing this employee for some time until the situation improved.
• To be successful in any claim against their employer, an employee would need to demonstrate that they held “a reasonable belief that there was a serious and imminent threat” to their health, and that this entitled them to leave or stay away.