How should vulnerable workers feature in return to work risk assessments?

If certain groups are at higher risk, how can employers ensure they are protected?
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It’s been widely reported that people from black and ethnic minorities and individuals with obesity are at greater risk of contracting coronavirus. Does that mean risk assessments for returning to work should consider these factors? Jo Moseley examines the issues.

Earlier this week, Public Health England published its report on Disparities in the risk and outcomes of COVID-19.

It concluded that BAME groups have a much higher risk of dying if they contract the virus than those in white ethnic groups. People of Bangladeshi ethnicity were most at risk.

The report does not reach a definitive conclusion on the cause, describing the relationship between ethnicity and health as “complex and likely to be the result of a combination of factors”.

But it does say that BAME communities are likely to be at increased risk of infection because they are more likely to live in urban areas, in overcrowded households, in deprived areas and have jobs that expose them to higher risk.

On the question of obesity, the report said that more information was needed to understand the association between this and coronavirus.

Clinically vulnerable workers

BAME people are not included in the government’s clinically vulnerable group, which was recently updated to include anyone who is seriously overweight (with a body mass index of 40 or above).

Government advice is that anyone in this group should “stay at home as much as possible, and, if you do go out, take particular care to minimise contact with others outside your household”. However, NHS guidance also says that this group can go to work if they can’t work from home.

Risk assessments

Employers must carry out a Covid-19 risk assessment and general guidance produced by the HSE states that they must:

  • identify what work activity or situations might cause transmission of the virus;
  • think about who could be at risk;
  • decide how likely it is that someone could be exposed; and
  • act to remove the activity or situation, or if this isn’t possible, control the risk.

Each of these steps must be carefully considered and documented. Employers will need to separately consider those who are in the vulnerable group and also follow any relevant recommendations set out in sector-specific guidance produced by the government and any other relevant approved trade/sector guidance.

Businesses may also have to consider how their staff travel to work as part of their overall risk assessment, particularly if staff rely on public transport.

Obesity

Businesses will need to include obesity when considering who may be at risk in your workplace and then undertake individual risk assessments for anyone in that group – particularly as they may have other underlying health conditions that you may not be aware of.

They will need to make sure that staff are aware of the steps that have been taken to protect them.

As part of this exercise, employers could list the categories of people in the vulnerable group and explain that current advice is that they can return to work (if they can’t work from home) and ask them to contact HR so that it can consider their individual circumstances before a decision about whether it’s safe for them to do so is reached.

We recommend that employers include links to the NHS BMI calculator to help your staff determine if they are “very obese”.

Bear in mind that people who fall into this category may be reluctant to talk to their employer about it. If you believe that a member of staff is very obese, businesses may – depending on the nature of their work – ask staff to work out their BMI and inform HR if it’s 40 or above. This will need to be extremely tactful, but employers shouldn’t shy away from the conversation simply because it is a difficult one.

What about BAME groups?

Employers may need to include BAME groups in your overall risk assessment, particularly if the work undertaken by individuals in this group potentially increases their exposure to Covid-19.

For example, people working in the transport, health and social care settings will have a much greater exposure to the virus than say office workers. Therefore, the approach businesses take will depend on the nature of their business.

By way of example, the NHS Covid-19 Risk Reduction Framework for Health Care Workers includes four subgroups which require individual assessments.

One of these is age and ethnicity and includes:

  • BAME ethnicity aged above 55 particularly in those with comorbidities; and
  • White Europeans aged 60 and over

It also includes sex as a category because males are at a higher risk than females. Of course, individuals may fall into more than one category which may increase their overall risk.

Once employers have this information, they should put in place any steps to ensure that these individuals can safely return to work.
If they can’t return and are unable to work from home, managers may need to consider other options such as paid holiday or unpaid leave.

However, we recommend that companies take advice first because BAME people in particular will be protected under the Equality Act and may argue that their employers’ actions – in either forcing them to return to work or stay away from it – may indirectly discriminate against them.

You therefore must keep notes to support your decisions as these will be helpful if you do have to justify them.

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Jo Moseley

About Jo Moseley

Jo Moseley is a senior associate solicitor at Irwin Mitchell

One Response to How should vulnerable workers feature in return to work risk assessments?

  1. Avatar
    Diane 5 Jul 2020 at 3:54 pm #

    Ms. Mosely I hope you know that you have written in this article a blue print for workplace discrimination of Black people. It is difficult enough to get and keep good paying jobs, but now you have suggested a whole new layer of workplace discrimination.
    You really should think before you write or maybe let a black person chime in on your thoughts before you go to print

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