[Updates: DoH published Guidelines on Vulnerable Workers - 25 May 2020; Health and Safety Directive - 4 June 2020]
The phased-in lifting of the lockdown in South Africa means that employers have started to open up their businesses again. There are, however, measures the employer must put in place prior to the return of employees to the workplace. One of the requirements is that ‘special measures’ must be implemented for employees over the age of 60 years and those with health issues or comorbidities.
There have been a lot of questions about how employers should handle employees who are regarded as such ‘vulnerable workers’ for the purposes of Covid-19 back-to-work measures. In particular, there is a misconception that such employees may not return to the physical workplace, and some believe that such employees would be entitled to (paid) ‘special leave’ if they fall into this category. It is not quite as simple as that.
What are the requirements relating to 'vulnerable workers'?
The Level-4 and Level-3 COGTA-Regulations require every business premises to, inter alia, implement special measures for:
The special measures must be aimed at mitigating the risk of Covid-19 for these vulnerable workers to facilitate their safe return to work or their working from home.
Annexure E to the Regulations (Workplace Plans) as well and the Health and Safety Directive of 4 June 2020, prescribe that an employer’s Workplace Plan must include a list of staff who can work from home; staff who are 60 years or older; and staff with comorbidities or underlying health conditions.
These Regulations however do not give guidance in terms of what exactly those health issues or comorbidities would be – so one has to look elsewhere for that.
Who are ‘vulnerable workers’ in terms of the Department of Health's guidelines?
In the Department of Health's Guidelines on Vulnerable Workers (25 May 2020) some health conditions are identified that may put employees at higher risk, especially if uncontrolled.
People with one of or a combination of the following:
It is not a closed list – and in addition, a lot about Covid-19 is still unknown. Medical information and guidelines may change as we learn more about the virus and how it impacts the human body.
How does the employer know if there are such vulnerable workers amongst its staff?
The employer has a duty to identify such vulnerable workers in order to implement special measures. They also have to be listed in the employer’s Workplace Plan.
Age should not be a problem, based on the employer’s personnel records. As regards underlying health conditions or comorbidities, the employer can ask this information from its employees – preferably by way of a declaration form to be completed and submitted for the employer’s records.
Care should however be taken in terms of privacy and the protection of the employee’s personal information. The worker should not have to declare medical details on such a form – just that an underlying illness exists which may place them in a higher risk category. The employer (or a staff nurse / doctor) can then further confidentially communicate with the employee in this regard and get medical confirmation that a health condition exists. Also, in terms of identifying such employees in the Workplace Plan, the employer could use staff numbers rather than names when listing such vulnerable workers.
In terms of the Health Guidelines, once an employee has indicated the existence of a condition related to Covid-19 vulnerability -
It is therefore clear that a medical practitioner need not, unless consented to by the employee, declare the details of the illness(es) or comorbidities to the employer – just confirm that they have a relevant medical condition for the purposes of Covid-19 vulnerability. However, the employer should engage with the doctor in terms of possible special safety measures that could be taken to sufficiently address the risk at the workplace, depending on the circumstances of the particular employee.
What are the employer’s responsibilities regarding vulnerable workers?
The Occupational Health and Safety Act places a legal duty on employers to provide and maintain, so far as is reasonably practicable, a working environment that is safe and without risk to the health of its employees and anyone else who may be affected by the employer’s business, including customers, suppliers, visitors and members of the public.
The consolidated ‘Covid-19 OHS for Workplaces’ Directive by the Minister of Employment and Labour dated 4 June 2020, requires all employers to conduct a risk assessment of the workplace which would include the employer identifying the employees at risk and the risk for transmission of COVID-19 in the work environment. It further states that the Directive is based on infection transmission prevention and specific occupational hygiene practices that focus on the need for employers to implement measures to mitigate or eliminate the transmission of the virus in the workplace. An obligation is also placed on employers to take special measures to facilitate the safe return to work of employees who have been identified to be vulnerable to Covid-19 infection.
This means that the employer’s duty of care has now been moved up a notch in respect of these workers and that this must be taken into consideration when conducting the risk assessment and the response to the risks identified.
In summary, employers must -
What special measures should the employer consider?
Employers should consider what additional risk control measures would be appropriate in respect of protecting vulnerable workers and develop policies and procedures to give effect to those measures. It does not mean that such employees necessarily have to stay at home.
Employers should supplement and enhance the risk control measures with additional measures to protect vulnerable workers. These measures would depend on the particular risk factors faced by each employee and would need to be tailored to the circumstances of the vulnerable worker and their work environment and activities. As mentioned earlier, it is advisable to obtain medical advice (including occupational medical advice) in this regard first, which includes directions on how to manage the risks faced by the employee, taking into account the circumstances of the workplace. Some industries or sectors may have additional rules and processes for how these employees can be assessed to go back to work.
Special health and safety measures could include:
Other alternatives for vulnerable workers who cannot work from home
If the risk assessment shows that an employee is unable to work remotely; and/or that there are no special measures that would render the workplace safe for him/her in his/her current position, this essentially would constitute a situation of (temporary) operational- or ill health incapacity.
The employer will need to consult with the employee in order to consider and hopefully reach agreement on an alternative arrangement. Decisions should be transparent and objective to avoid claims of unfair discrimination.
Alternative measures that an employer may consider include -
The DoH Guidelines further also indicates that vulnerable employees' health benefits should be maintained until their return to work.
It should be noted that material changes to terms and conditions of employment can only be made by agreement between the employer and employee. The employee may refuse to engage with the employer on such alternatives and insist on attending the workplace and resuming their usual duties, regardless of the risks identified by the employer. This poses a dilemma for the employer and the question has been asked if the employee can be allowed to return to work under those circumstances, provided the s/he signs an indemnity.
Some lawyers have indicated that such employees could be asked to sign a declaration that they had been informed of the fact that they are vulnerable and that they refused to enter into discussions regarding alternatives to employment or measures that would address the vulnerability.
Whilst such a document is good to have for the employer’s records going forward, we don’t believe that an indemnity document as such would relieve the employer of its duties under the OHSAct and the Covid-19 Regulations. If the alternatives that would allow the vulnerable employee to safely attend work and receive payment are not agreed to by the employee and can therefore not be implemented by the employer, it is our view that the employee then should not be permitted to return to the workplace, and one of the other alternatives above should apply.
On the other hand, If the employer can in fact reasonably accommodate the vulnerable worker at the workplace with special measures, but fails to do so and sends the employee home on no pay, this could potentially be regarded as an unreasonable instruction by the employer, which could be challenged by the employee.
It is a fluid situation
Remember that the situation must constantly be reviewed by the employer. We learn more about the virus on a daily basis, medical guidelines may change, there may be new Regulations or Directives, new technology may become available, the employee's health condition may improve, and so on. The employer’s operational demands and requirements may also change.
The time frame is also important – while we all hope for a ‘temporary’ situation around Covid-19 restrictions and risks that is as short as possible, there is no way to know how long this will take. A temporary incapacity situation could well turn into one that is unreasonably long, which might justify dismissal.
This is a situation that is fraught with difficulties and potential challenges, and in the absence of legal precedent to help us navigate these unusual circumstances, employers should be cautious and not take such decisions lightly. It is recommended that legal advice is obtained on specific issues that might arise.
© Judith Griessel