COVID-19 – Lockdown No. 2 and CJRS
This note looks at the national restrictions which came into force on 5 November 2020, including what they mean for business closures, working from home and the financial support available. It also looks at the extension to the Coronavirus Job Retention Scheme (CJRS).
Where are we now?
The measures which came into force on 5 November 2020 (National Restrictions) National Restrictions were introduced to try and reduce the growth rate of the virus, in the hope that this will prevent the NHS from being overwhelmed, particularly during the winter period. The measures will apply in England until 2 December 2020.
What does this mean?
Under the National Restrictions you must not leave or be outside of your home unless permitted by law. The legal permission which is relevant as far as the work place is concerned is:
- Work and volunteering
The government guidance on the “New National Restrictions from 5 November” (Guidance) states that everyone who can work effectively from home should do so (initially the guidance said “must do so” but this changed).
Where working from home is not possible, for example in industries such as construction, manufacturing, childcare or education, an employee can continue to go into work.
However, the wording in “The Health Protection (Coronavirus, Restrictions) (England) (No.4) Regulations 2020” (Legislation) Legislation - Regulation 6 is different, stating that you can leave your home for the purposes of work or to provide voluntary services where it is not reasonably possible to work, or provide services, from home.
Although the wording “reasonably possible” does not seem significantly different to the “work effectively” test, the legislation will take precedence over the guidance and it is likely to mean that employers should have to ask employees to work from home, as it is harder to justify not working from home if it is only about it being reasonably possible.
Protecting employees/workers more at risk from coronavirus
Clinically vulnerable people are those who are:
- Aged 70 or over
- Aged under 70 with one of the following underlying health conditions (who is instructed to get a flu jab each year on medical grounds):
- chronic (long-term) mild to moderate respiratory diseases, such as asthma, chronic obstructive pulmonary disease (COPD), emphysema or bronchitis
- chronic heart disease
- chronic kidney disease
- chronic liver disease, such as hepatitis
- chronic neurological conditions, such as Parkinson’s disease, motor neurone disease, multiple sclerosis or cerebral palsy
- problems with the spleen, such as sickle cell disease or removal of the spleen
- a weakened immune system as the result of conditions such as HIV and AIDS, or medicines they are taking (such as steroid tablets or chemotherapy)
- being seriously overweight (a body mass index of 40 or above)
A new addition to this list from the most recent guidance on the subject is “problems with the spleen, such as sickle cell disease or removal of the spleen”. A link to the relevant section of the National Restrictions is here.
Can clinically vulnerable employees still attend work?
The Guidance states that if an employee is deemed to be clinically vulnerable, or over 60, they should:
- be especially careful to follow the rules and minimise their contact with others; and
- continue to wash their hands carefully and more frequently than usual and maintain thorough cleaning of frequently touched areas in homes and/or workspaces.
If an employee cannot reasonably work from home, they are still expected to attend work, in line with the rules set out in the National Restrictions.
The inclusion of those aged 60 to 69 is new, and many employers will need to risk assess employees in that category if that has not been done previously. The inclusion of those aged 60 or over reflects the World Health Organisation guidance.
Clinically extremely vulnerable
There is a further group of people who are defined as clinically extremely vulnerable to coronavirus. These are people who have one or more of the conditions noted below, or have been added to the Shielded patients list by their hospital clinician or GP.
If an employee has one or more of the following conditions, they will be automatically deemed clinically extremely vulnerable:
- Solid organ transplant recipients
- Those with specific cancers:
- people with cancer who are undergoing active chemotherapy
- people with lung cancer who are undergoing radical radiotherapy
- people with cancers of the blood or bone marrow such as leukaemia, lymphoma or myeloma who are at any stage of treatment
- people have immunotherapy or other continuing antibody treatments for cancer
- people having other targeted cancer treatments that can affect the immune system, such as protein kinase inhibitors or PARP inhibitors
- people who have had bone marrow or stem cell transplants in the last 6 months or who are still taking immunosuppression drugs
- those with severe respiratory conditions including all cystic fibrosis, severe asthma and sever chronic obstructive pulmonary disease (COPD)
- those with rare diseases that significantly increase the risk of infections (such as severe combined immunodeficiency (SCID, homozygous sickle cell disease)
- those on immunosuppression therapies sufficient to significantly increase risk of infection
- adults with Down’s syndrome
- adults on dialysis or with chronic kidney disease (stage 5)
- women who are pregnant with significant heart disease, congenital or acquired
- other people who have also been classed as clinically extremely vulnerable, based on clinical judgement and assessment of their needs. GPs and hospital clinicians have been provided with guidance to support these decisions.
New additions to this list from the most recent guidance on the subject are adults with Down’s syndrome and adults on dialysis or with chronic kidney disease.
Can a clinically extremely vulnerable employee still attend work?
If an employee is deemed clinically extremely vulnerable, they are strongly advised to work from home. If they cannot work from home, they should not attend work (from 5 November 2020 until at least 2 December 2020). The government guidance entitled “Guidance on shielding and protecting people who are clinically extremely vulnerable from COVID-19” here is more emphatic on this point than the National Restrictions.
If an employee cannot attend work because they are regarded as clinically extremely vulnerable, they may be eligible for the Coronavirus Job Retention Scheme, Statutory Sick Pay (SSP), Employment Support Allowance (ESA) or Universal Credit (subject to eligibility criteria). The Shielding Notification that they have received will act as evidence for the Department for Work and Pensions.
What if an employee lives with someone who is clinically extremely vulnerable?
If an employee lives with someone who is clinically extremely vulnerable, they are still expected to attend work if they cannot work from home, in line with the rules set out in the National Restrictions. This is a change to the guidance that applied during the last lockdown.
Travelling for work
Travelling overseas or within the UK is not permitted, unless for work, education or other legally permitted reasons, and individuals should look to reduce the number of journeys they make. Employees should only travel to work, where they are unable to work from home.
It is advised that busy times and routes on public transport are avoided and people are encouraged to walk or cycle where possible. If there is no other option but to use public transport to get to work, the safer travel guidance should be followed.
Where possible overnight stays away from the primary residence should be avoided, however employees are allowed to stay away overnight if accommodation is required for work purposes.
If an employee’s work involves travelling overseas, the current travel corridor list should be checked to see if they will need to isolate for 14 days upon their return to England.
Enforcement and penalties
The government has given the police the authority to enforce the National Restrictions and it is deemed to be an offence if a restriction or requirement is contravened, or there is a failure to comply with a reasonable instruction when there is an attempt to enforce the National Restrictions.
An offence is punishable with a fine.
Face coverings whilst at work
Face coverings are required by law to be worn by staff working in areas that are open to the public and where they are likely to come into contact with a member of the public. However if businesses have taken steps in line with the executive guidance for COVID-19 secure workplaces to create a physical barrier between workers and members of the public then staff behind the barrier will not be required to wear a face covering.
The Department for Business, Energy and Industrial Strategy (BEIS) has provided detailed guidance for specific workplace settings, where further information can be found.
Extension of the Coronavirus Job Retention Scheme (CJRS)
On 5 November 2020 Rishi Sunak declared that the CJRS would be extended until 31 March 2021. The rules of the scheme will largely remain the same as announced in August 2020, meaning that employees will receive 80% of their usual salary for hours not worked (up to a maximum of £2,500 per month), and the employer will be asked to cover National Insurance and pension contributions.
The CJRS is designed to help employers whose operations have been severely affected by coronavirus to retain their employees and protect the UK economy. The Fifth Treasury Direction which was published on 13 November 2020 expands on this to say that the amounts paid to an employer under CJRS are only made by way of reimbursements of the expenditure incurred or to be incurred by the employer whose employees’ employment activities have been adversely affected by the coronavirus.
Employers can claim for employees who were employed and on their PAYE payroll on 30 October 2020 and who meet the CJRS eligibility criteria. There is no requirement for the employee to have been furloughed previously under the CJRS.
Employers who wish to claim under the CJRS can chose to either:
- flexibly furlough employees. This means that an employee can work for any amount of time or work pattern and the employer can claim the furlough grant for the hours not worked.
- fully furlough employees. This means that an employee cannot carry out any work for the employer during the hours that they are recorded as being on furlough.
Employees with health concerns can be furloughed where they are unable to work because they are:
- shielding in line with public health guidance (or need to stay at home with someone who is shielding); or
- have caring responsibilities resulting from coronavirus, including employees that need to look after children.
Employees who were employed and on the payroll on 23 September 2020 who were either made redundant or stopped working for their employer afterwards can be re-employed and claimed for under CJRS. This also applied to employees who were working on a fixed term contract which expired after 23 September 2020.
The government has announced that it will be publishing the names of companies and LLPs who make claims under the CJRS from 1 December 2020 onwards and by making a claim the employer accepts that:
- any payment made is made only for the purpose of CJRS (reimbursement of the expenditure incurred for employees whose employment activities have been adversely affected by the coronavirus).
- if, upon receipt of the payment under CJRS, the employer is unwilling or unable to use the payment for the purposes of CJRS then the payment must be returned to HMRC.
- HMRC will publish information about employers who have received a payment pursuant to a CJRS claim for a claim period occurring in December 2020 and January 2021.
Employers are being told that HMRC will check all claims, and payments may be withheld or need to be paid back if it is found to be fraudulent or based on incorrect information.
Frequently asked questions
What should I do if an employee is clinically extremely vulnerable but does not want to work at home?
The Legislation states that no person may leave or be outside of the place where they are living without a reasonable excuse. An exception to this, as explained above, is for the purposes of work, where it is not reasonably possible to work from home. The Guidance on shielding and protecting the extremely clinically vulnerable strongly advises that a clinically extremely vulnerable person works from home, and does not go to work.
If an employee who is deemed clinically extremely vulnerable can reasonably work from home but would prefer to come to work, it is strongly advisable that the employer requires that person to work from home, informing them that all other terms and conditions of employment will remain the same, which should alleviate any financial concerns they may have about not physically attending work. You should, however, also speak with your employee to ascertain why they would prefer to come in to work, to see if there are any adjustments that can be made to alleviate their concerns about home working.
What is the position if an employee is clinically vulnerable, cannot reasonably work from home, but refuses to come to work based on safety concerns?
If it is not reasonably possible for an employee to work from home, they are expected to attend work. However, it is advisable that you speak with your employee to find out what their specific concerns are, to see if there are steps that can be taken to address them. An employee who declines to return to return to work or leaves work citing safety concerns may be protected from disciplinary action or, for example, loss of salary.
Whether the steps which an employee took (by leaving or not returning) were appropriate will be judged in all the circumstances including the employee’s knowledge and the facilities and advice available to them at the time.
To be able to consider action against employees who leave work or refuse to return citing COVID-19 concerns, employers must be able to show they have taken all reasonable steps to address the risks and communicated the steps they have taken so it can be argued the employee is not acting reasonably in concluding there is a serious and imminent risk. In all likelihood, an employer who has not carried out risk assessments and taken steps to manage a safe return to work, including by following government guidance, will be in difficulty in taking action against employees and moreover exposed to claims if they do.
An employee has advised that an individual with whom they live has tested positive for coronavirus, and they have been advised to self-isolate. Can an employer still require them to attend work?
The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 (the Regulations) set out mandatory periods for self-isolation, and a duty to notify the Secretary of State of the names of people in the same household as anyone who has tested positive for coronavirus.
When an individual becomes aware that they are required to self-isolate, Regulation 8 of the Regulations states that an individual must notify their employer of their requirement to self-isolate, as well as the start and end dates of the isolation period. Once an employer has been made aware of the individual’s requirement to self-isolate, Regulation 7 states that they must not knowingly allow the individual to attend work during the isolation period. If it is found that the employer allowed an individual to attend work while they should have been self-isolating, thereby breaching Regulation 7, the employer will have committed a criminal offence under the Regulations and is likely to receive a fixed penalty of £1,000, which can be increased to £10,000 for repeat breaches.
Cater Leydon Millard
17 November 2020