Advice for the current times Webinar
An on demand event jointly hosted by the NAHT and Discovery Education
In this webinar, we aimed to cover the ‘New National Restrictions’, in particular:
- Clinically vulnerable people
- Clinically extremely vulnerable people
- Sickness absence
- Pregnant women
- Staff who don’t feel safe
- Risk assessments
- Coronavirus cases at school
- Remote learning
Clinically vulnerable people
“Staff who are clinically vulnerable, or have underlying health conditions but are not clinically extremely vulnerable, may continue to attend school in line with current guidance” – provided the school is Covid-secure and that they comply with their employer’s risk assessments and all the Covid measures in place.
Clinically extremely vulnerable people
Those in this group have not been sent formal shielding letters like before. Instead people in this group are considered to be automatically clinically extremely vulnerable if either:
- they have one or more of the CEV listed conditions or
- their hospital clinician or GP has added them to the Shielded Patient List. If this is the case, they will receive a letter from their GP or hospital with advice on the steps they should take, including advice not to attend the workplace. If they cannot work from home, they are advised not to go to work.
“Those individuals who are clinically extremely vulnerable are advised to work from home and not to go into work. Individuals in this group will have been identified through a letter from the NHS or from their GP, and may have been advised to shield in the past. Staff should talk to their employers about how they will be supported, including to work from home where possible, during the period of national restrictions.
All other staff should continue to attend work, including those living in a household with someone who is clinically extremely vulnerable.”
What steps must we take in relation to CEV staff?
It’s recommended that you take the following preliminary steps in relation to CEV staff:
- Identify those staff in the CEV group and arrange to meet with them as soon as possible to discuss the current guidance, if you haven’t already done so
- Together with the employee, review their individual risk assessment and discuss and agree with them the working arrangements that will be put in place during the period of new restrictions
- Consider what the employee can do from home. This may mean a temporary redeployment or a change in work duties. Any such change should be discussed and agreed with the employee, and a date set when the arrangement will next be reviewed
- Ensure the employee has the resources and equipment to be able to work from home
- Ensure the employee is included in work updates, informed of any work changes and given an opportunity to attend meetings, decisions and events (remotely) that they would otherwise be a part of if they were physically at work
- Provide the employee with details of sources of support
- Follow up, in writing, with a summary of what has been agreed and/or any action points/next steps.
Ultimately, it will always be the case that schools can only open if it is safe to do so.
If schools reach a point where a reduction in staffing numbers means they do not have the capacity to keep all classes open safely, school leaders may have no alternative but to review whether they need to implement a short-term partial closure. If you feel you might be approaching this position, we strongly advise that you discuss this with your governing and employing bodies before taking any action. It’s important to demonstrate that these conversations have taken place.
What if our CEV staff want to continue attending work?
If you’re faced with this situation, it’s recommended that:
- You meet with the employee and discuss their situation
- Ask the employee to take advice from their GP/Consultant on the risks of attending the workplace and whether attending work is recommended, before you agree to their continued attendance at work
- Make an Occupational Health (OH) referral and obtain a report on whether any further adjustments could be made to the workplace to minimise the risk to the employee, beyond the steps already taken under the risk assessment. This should be done before you agree to their continued attendance at work
- Agree with the employee that they will work from home until the medical advice and OH report have been received and a way forward has been agreed with them. Explain to the employee that whilst you wish to support them in their decision, the final determination whether they can continue coming to work during the period of restriction will be based on the risks identified and the medical evidence.
If the expert advice is that the employee should not return to the workplace during the period of restriction, then an employer may reasonably refuse to allow the employee to return to work. There is a risk that asking an employee to remain at home when they have requested to return to work could amount to a breach of trust and confidence. However, a reasonable defence to such an argument could be that the employer took the steps that it did to protect the health and safety of the employee and to comply with guidance issued by the DfE.
What about pay?
Our view is that a CEV employee, who cannot attend the workplace on the advice/recommendation of the government, is doing so due to their CEV status and not because they are not fit for work (i.e. sick).
As such, provided they are ready, willing and able to perform work in accordance with the contract, they are entitled to full pay. For this reason, it’s best to explore home working, including a temporary redeployment or a change in duties.
Sick leave entitlement and pay provisions, for almost all teaching staff and school leaders in England and Wales, are set out in what’s called ‘The Burgundy Book’.
Section 10.1 of the Burgundy Book – ‘Contact with infectious diseases’ – states the following:
“When the approved medical practitioner attests that there is evidence to show a reasonable probability that an absence was due to an infectious or contagious illness, contracted directly in the course of the teacher’s employment, full pay shall be allowed for such period of absence as may be authorised by the approved medical practitioner as being due to the illness, and such absence shall not be reckoned against the teacher’s entitlement to sick leave, though such absences are reckonable for entitlement to Statutory Sick Pay.
Additionally, Section 10.3 of the Burgundy Book states:
“A teacher residing in a house, in which some other person is suffering from an infectious disease, shall at once notify the employer and the teacher shall, if required, take such precautions as may be prescribed, provided that if in the opinion of the approved medical practitioner it is considered inadvisable, notwithstanding such precautions, for such teacher to attend duty, full pay shall be allowed during any enforced absence from duty. This provision will also apply where, in the opinion of an approved medical practitioner, it is inadvisable for a teacher to attend duty for precautionary reasons due to infectious disease in the workplace. The period of the absence under this paragraph shall not be reckoned against the teacher’s entitlement to sick leave, though such absences are reckonable for entitlements to Statutory Sick Pay.
So, what does this mean exactly?
- It means that staff who are absent with a COVID-related infection [however contracted], are entitled to full pay, subject to satisfactory medical certification and the provisions set out in the employer’s sickness absence policy and/or the individual contract of employment.
- It means that the duration of a COVID-related sickness absence is not counted towards an absent member of staff’s sick leave entitlement.
- It does mean however that a COVID-related sickness absence kicks in for the purposes of calculating occupational sick pay and Statutory Sick Pay [SSP] – SSP kicks in when a member of staff’s entitlement to occupational sick pay has been exhausted and is payable for 28 weeks thereafter.
Pregnant women have been classified as being in the ‘clinically vulnerable’ group, as a precaution. This means that they may continue to attend school, provided it is Covid-secure and that they comply with their employer’s risk assessments and all the Covid measures in place.
Key advice for pregnant women during the pandemic:
- Follow the guidance on staying alert and safe (social distancing) and staying safe outside the home including appropriate use of face coverings for the general public and clinically vulnerable people, including pregnant women (this guidance covers England only – if you live in Scotland, Wales or Northern Ireland, you should follow the specific advice in those parts of the UK)
- Keep mobile and hydrated to reduce the risk of blood clots in pregnancy
- Stay active with regular exercise, a healthy balanced diet, and folic acid and vitamin D supplementation to help support a healthy pregnancy
- Attend all of your pregnancy scans and antenatal appointments unless you are advised not to
- Contact your maternity team if you have concerns about the wellbeing of yourself or your unborn baby
For more detailed and definitive advice and guidance, please take a look at The Royal College of Obstetricians and Gynaecologists website – you’ll find four short [2-3 minutes] videos relating to pregnancy and coronavirus, ante-natal appointments, pregnant BAME women and the flu vaccine as well as answers to 50 of their most commonly-asked questions.
More pregnancy and coronavirus information is available on the NHS website.
Staff who don’t feel safe
If any staff member raises concerns about attending work during this period, irrespective of whether they fall into a vulnerable group or not, you should meet with them to discuss their concerns and take the appropriate next steps where necessary. We recommend you take early advice in relation to such issues as matters relating to employees raising health and safety concerns require careful handling.
The latest guidance states: “Schools should continue to undertake risk assessment.”
In practice, risk assessments should always be dynamic documents and subject to regular and ongoing review. We recommend that risk assessments are updated if circumstances change. The increasing rate of transmission across the country and the government’s new guidance can be seen to represent a change in circumstances. However, this does not mean that risk assessments need to be completely rewritten from scratch. Existing risk assessments can simply be updated and amended.
We recommend that schools prioritise reviewing the risk assessments of clinically extremely vulnerable staff in light of the new guidance, and then the risk assessments of vulnerable staff. If you have specific questions about risk assessments, we recommend you contact your health and safety team at the local authority or within your trust.
Coronavirus cases at schools
The DfE’s guidance states that if someone in school tests positive, the school should contact the local health protection team. The health protection team will provide definitive advice on who must be sent home. The health protection team will carry out a rapid risk assessment to confirm who has been in close contact with the person during the period that they were infectious, and ensure they are asked to self-isolate.
The health protection team will work with schools in this situation to guide them through the actions they need to take. Based on the advice from the health protection team, schools must send home those people who have been in close contact with the person who tested positive, advising them to self-isolate for 14 days since they were last in close contact with that person when they were infectious.
Can a school refuse to let a pupil attend if they have Covid-19 symptoms?
The following advice has been agreed with the Department for Education:
‘Where a child has symptoms of coronavirus, they should be sent home and asked to self-isolate for at least 10 days; in their absence, they should arrange to have a test to see if they have coronavirus.
In the event that a parent or guardian insists on a child attending school, schools can take the decision to refuse the child if, in their reasonable judgement, it is necessary to protect their pupils and staff from possible infection with coronavirus.
NAHT suggests that where time allows it is worth informing your chair of governors, local authority or trust of the decision. We would also recommend keeping a short contemporaneous note of the factors considered when making this decision.
If a child develops covid-19 symptoms while in school, do I have to send anyone home who has been in close contact with that child?
No – the DfE’s guidance states that: “Any members of staff who have helped someone with symptoms and any pupils who have been in close contact with them do not need to go home to self-isolate unless they develop symptoms themselves or if the symptomatic person subsequently tests positive or they have been requested to do so by NHS Test and Trace.”
Should I ask parents for evidence of a negative test before a child returns to school?
No, the guidance explicitly states the schools should not ask for this.
The government has used its temporary ‘Continuity Direction Powers’ to place an obligation on schools to provide immediate access to remote education for pupils if they are absent because of Covid19, with effect from 22 October. The DfE has published a Remote Education explanatory note that provides more details regarding what this means for schools.
It’s important to note that there is nothing in the legislation or associated guidance that requires schools to do live lesson streaming and therefore schools may choose to make use of existing available resources. The government’s advice points to materials from the British Educational Suppliers Association (BESA). Materials that are already used in lessons such as worksheets can also be considered.
It’s recommend that schools have a clear, written remote learning plan in place and that this is shared in advance with pupils and families so they know what to expect.
Don’t forget to explain the provision you are putting in place to your Governing Body or Trust Board and have them agree that the provision is adequate. This is because NAHT believes it is the employer who is the “responsible body” and not the head teacher.
The DfE has confirmed that the following activities are still able to go ahead during the second lockdown:
- Any activities which take place during school hours – so any lunch or break-time club is permitted, as long as it COVID-safe to do so
- Any activities whose primary purpose is to enable parents or carers to work, such as after-school clubs
- Any activities which are focused on education or training, including 1:1 or group tuition, catch-up clubs, revision clubs, etc
- Breakfast clubs whose primary purpose is providing food for vulnerable children.