The information on this page is provided for information purposes only, and does not constitute legal advice. If legal advice is required you should contact a specialist legal firm.
This information applies to Wales only.
For information about England see our page on Employment and Covid-19 (England)
Last updated July 2020
- The Welsh Government requires everyone to work from home if they can. However, more workplaces can now start to reopen.
- The shielding group should not return to the workplace before 16th August. After that date, extremely vulnerable people may return to the workplace only if it is not possible to work from home and only if the workplace is made Covid safe.
- People in the clinically vulnerable group may return to work if they cannot work from home and the workplace is Covid safe, but must be stringent in their social distancing.
- Employers in Wales have a legal duty to take reasonable measures to ensure a 2m distance can be observed on their premises
- It is extremely important that employers and employees communicate early about returning to work, a comprehensive risk assessment is conducted prior to a clinically and/or extremely vulnerable person returning to work and all appropriate action is taken to ensure the workplace is Covid-safe.
- If the workplace cannot be made Covid-safe and home working is not possible then government support is available, including extension of the furlough scheme for people furloughed for at least 3 weeks prior to June 30th.
To support employers in their risk assessment responsibilities, this information covers risk level from Covid-19 for people with CKD and outlines Government guidance regarding how and if they can return safely to work.
People with moderate to advanced (stage 3+) chronic kidney disease are at greater risk from severe complications from coronavirus (Covid-19). This greater risk places them within the Clinically Vulnerable Group or the extremely Clinically Vulnerable Group, depending on the severity of their disease, the treatment they receive and other illnesses or conditions they have.
Early and comprehensive discussions between employers and employees about how best to ensure safety at work guidance is followed will help to ensure that the employer is fulfilling its duty of care and that people with kidney disease can work safely.
What vulnerability group are people with chronic kidney disease in?
Everyone with moderate to advanced (stage 3+) kidney disease is at high risk of getting a severe illness if they catch Covid-19 and are therefore in either the ‘Clinically Vulnerable Group’ or the Clinically Extremely Vulnerable Group, depending on the severity of their disease or the treatment they receive.
1) Clinically Extremely Vulnerable Group
A proportion of people with CKD are at particularly high risk from getting very severe illness if they catch Covid-19. They are in the Government’s Clinically Extremely Vulnerable Group
The following people with CKD are in the Clinically Extremely Vulnerable Group:
- You have a transplant
- You are on dialysis
- If you over 70 and are on any form of immunosuppression or have been on one in the past
- Your kidney disease is caused by inflammation, a condition of your kidneys (sometimes called an autoimmune condition) AND you are in one or more of the following patient groups:
- If you are currently receiving intravenous cyclophosphamide treatment or rituximab treatment or have done so within the last 6 months
- If you are receiving cyclophosphamide treatment as tablets (oral treatment)
- If you have received prednisolone at a dose equal to or above 20mg tablets every day for more than 4 weeks any time within the last 6 months
- If you have received or currently are receiving more than 5mg every day of prednisolone for greater than 4 weeks taken with at least one other immunosuppressive type of medicine within the last 6 months.
- If you suffer with nephrotic syndrome (sometimes described as protein leaky kidneys, usually due to minimal change disease, FSGS or membranous nephropathy) and are currently nephrotic (i.e. your protein leak is high/your ankles are swollen) or you have had more than one nephrotic (protein leaky) attack needing drug treatment during the last 6 months.
More detail about the Clinically Extremely Vulnerable Group is at appendix 1. Individuals may have also been advised to shield if their overall level of health makes them extremely vulnerable to Covid-19.
1.1 Clinically Extremely Vulnerable Group and returning to work
People in the Clinically Extremely Vulnerable Group are advised to shield. Shielding is an advisory action that requires the individual to minimise time spent away from home and limit interaction with others. The full guidance can be viewed in Guidance on shielding and protecting extremely vulnerable persons from Covid-19
People who are shielding should not go to their normal place of work. Health and Safety Executive advice for employers is that “If a worker is shielding because they are clinically vulnerable you should not ask them to work outside their home. Help them to work from home, either in their current role or in an alternative role.”
1.2 How long should people shield for?
In Wales, people are currently advised to shield until 16 August, when shielding will be paused. More information on the changes is in Government guidance
1.3 Family/household members of clinically extremely vulnerable people
A household member going out to work may increase the risk of a shielding person becoming infected with Covid-19. While household members are not advised to shield, it is important that employers talk to their workers and try to agree the best way to protect the shielded person. This may include working from home or changing roles, particularly for those working in public facing roles.
The Welsh Government’s workplace guidance states that “those workers who have caring responsibilities for someone who is required to shield are also in a difficult situation and should be supported”
The HSE state that employers should explain what will be done to protect workers living with someone in the shielding group, for example doing tasks where stringent social distancing guidelines can be followed.
1.4 Changes to the shielding group from 16 August 2020
The Welsh Government announced that from 16 August 2020 people in the clinically extremely vulnerable group are no longer advised to shield themselves. From that date they should stringently follow social distancing guidelines. They will remain at very high risk from severe complications if they become infected with Covid-19, but, because infection
rates in the community are expected to reduce by then, this group have less risk of becoming infected.
The Government guidance states that, from August 16th, clinically extremely vulnerable people who cannot work from home should be able to return to work, if infection rates remain low in Wales, and your workplace is Covid Secure. Your employer should help you to transition back to work safely and must take all reasonable measures to minimise exposure to coronavirus by ensuring a 2m distance is maintained between workers in your workplace.
The Health and Safety Executive have information on their website about shielding workers returning after shielding pauses: “As an employer, you have a legal duty to protect workers from harm. You should make sure you consider the risk to workers who are particularly vulnerable to coronavirus and put controls in place to reduce that risk.
You should talk to shielded workers about their working arrangements and take every possible step to enable your workers to work from home […]
When shielding is paused, where it is not possible for workers to work from home, you must regularly review your risk assessment, and do everything ‘reasonably practicable’ to protect those workers from harm.
If workers are in the shielded categories, explain what will be done to protect them, for example doing tasks where stringent social distancing guidelines can be followed.
This also applies to workers living with someone in the shielded group.”
Employers and employees should start having conversations about safely returning to work, if working from home is not possible, as early as possible before the guidance is changed on 16 August. If employers cannot provide a safe working environment, they will still be able to access a range of government support: this includes the Coronavirus Job Retention (furloughing) Scheme for employees who have previously been furloughed for a full three-week period prior to 30 June and the Self-Employed Income Support Scheme.
2) Clinically Vulnerable Group
Chronic kidney disease is in the Government’s list of conditions which make people clinically vulnerable to Covid-19. People with moderate to advanced (stage 3+) kidney disease are in the Clinically Vulnerable Group, unless the severity and type of their condition or treatment level places them within the Clinically Extremely Vulnerable Group (see above).
People in the Clinically Vulnerable Group are at higher risk of getting severe illness from Covid-19. Because of this, Government guidance states that individuals in the Clinically Vulnerable Group should be particularly stringent in following social distancing guidance.
2.1 Clinically vulnerable people and returning to work
People who are clinically vulnerable to Covid-19 are advised to stringently follow social distancing guidance. This means that they may return to the workplace if they cannot work from home and their workplace is Covid safe, but employers must be especially careful and take extra steps for anyone in their workforce who is in a vulnerable group.
Welsh government guidelines ‘Keep Wales Safe at Work’ states employers should record who is clinically vulnerable to Covid-19 and that those who are at increased risk of severe illness from Covid-19 must be particularly stringent in following social distancing measures.6 This could mean agreeing to change their usual workplace, or role, or modifying the work environment so that they can work safely. The guidance also notes that being unable to safely travel to work can be a barrier to returning to work that should be considered by employers.
3. Government guidance and legislation on safe workplaces
The Coronavirus Regulations impose a legal requirement on workplaces in Wales to take all reasonable measures to ensure a 2 metre distance is maintained between persons on their premises. Guidance has been produced to assist people in understanding what ‘taking all reasonable measures’ means and what to do if it is not possible to maintain a distance of 2 metres in certain circumstances.
It highlights that enabling people to work from home where possible is the most effective way of ensuring physical distance.
The Welsh Government have published guidance for employers on taking measures to make the workplace Covid safe. In addition, the Keep Wales Safe at Work guidance notes that finding a safe way to travel to and from work can be a barrier to returning to work safely.
The Health and Safety Executive have provided practical information on how to make work and the workplace safe. They have also produced an example risk assessment to show what to include in a Covid-19 risk assessment, including for vulnerable employees.
4. Can a clinically vulnerable or extremely clinically vulnerable employee be dismissed or disciplined if they refuse to work because they feel they are at risk from Covid-19 in the workplace?
It is hoped that any concerns relating to health and safety of clinically vulnerable and extremely vulnerable employees can be dealt with through timely discussions between employees and their employers. Employers have a legal duty to protect workers’ health, safety and welfare. Carefully following all guidance on protecting workers at risk of severe illness from Covid-19 is an important way of demonstrating how they are fulfilling this duty.
The Employment Rights Act 1996 protects employees from dismissal for absence for work, where that absence was due to a reasonable belief that attending work would put them in serious and imminent danger (and they could not reasonably have been expected to avert that danger). Although whether there is a serious and imminent danger would depend on a range of factors, such as the infection levels at that time, an employee who falls in the clinically vulnerable or extremely vulnerable group are more likely to be at serious and imminent danger if appropriate measures are not put in place.
It is also important to note that employment law protects people who make a ‘protected disclosure’ relating to health and safety concerns from dismissal or detriment. A protected disclosure can include a worker raising concerns that their health and safety is being put at risk, or that the employer is breaching its legal obligations in respect of the health and safety of its workers. More information is available on the UK Government website.
Employers are also still under legal obligations to ensure the decisions they make in response to coronavirus (Covid-19) do not directly or indirectly discriminate on the basis of disability or any other protected characteristic. Under the Equality Act 2010, employers have a duty to make reasonable adjustments for disabled employees.
The ACAS website explains that an employee is protected by law against unfair treatment and dismissal, if it’s because of a health condition that’s considered a disability under the Equality Act. It could be unlawful discrimination on the grounds of disability if an employer either unreasonably tries to pressure someone to go to work or unreasonably disciplines someone for not going to work when their disability means it is not safe for them to return.
Sources of information
- The Health and Safety Executive have extensive information on their website regarding working safely during the Covid-19 outbreak and can also be contacted via their website or on 0300 790 6787 (Monday to Friday 8.30am to 5pm)
- ACAS (The Advisory, Conciliation and Arbitration Service) has advise for employees and employers about working safely during the Covid-19 outbreak and has advice about dealing with any workplace problems. They have a lot of information on their website or their helpline is available on 0300 123 1100 (8am – 6pm)