According to the World Health Organisation (WHO), based on evidence currently available, there are two groups of people who are at higher risk of contracting severe Covid-19 disease -
- older people (i.e persons over the age of 60); and
- persons with underlying medical conditions (or comorbidities) such as cardiovascular disease, diabetes, chronic respiratory disease and cancer.
Employees who fall within the above categories are considered vulnerable employees.
While the level 4 lockdown regulations (regulations) and the OHS directive on health & safety measures (directive) in the workplace do not define the term "vulnerable employees" it is evident from their terms read together (specifically annexure E of the regulations and annexure A of the directive) that employers need to carefully consider how to accommodate vulnerable employees in the workplace. In our view this obligation is likely to not only be a consideration under the current level 4 lockdown but also in moving to the lower levels. In other words, until such time as Covid-19 is no longer a threat, measures will need to be considered and put in place to protect vulnerable employees.
In terms of the regulations and directive vulnerable employees are not prohibited from returning to work. However, the regulations read with the directive, provides two guiding principles to employers on how to safeguard the health & safety of vulnerable employees -
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Special measures |
- Employees (including vulnerable employees) who are able to work from home should be allowed to continue doing so during the level 4 lockdown
- It is advisable that employers follow this principle particularly for vulnerable employees due to higher risk of transmission
- Employers are under an obligation to implement special measures for vulnerable employees who are required to return to work
Prior to the level 4 lockdown, many employers have been able to continue operating their businesses through employees being permitted and enabled to work remotely. Employers should, as far as possible, continue using the model of remote working particularly in the case of vulnerable employees despite the lockdown level.
We are of the view that where vulnerable employees are able to work remotely but do not have the technology or tools to do so, the employer is required to take reasonable steps to enable such employees to work remotely.
Employers must ensure that they -
- keep a list of all vulnerable employees in terms of its Covid-ready Workplace Plan (under Annexure E of the regulations);
- conduct appropriate risk assessment processes and ensure that vulnerable employees are not subject to any form of discrimination or victimisation in that process; and
- implement special measures for vulnerable employees.
In terms of special measures, the employer must implement measures that ultimately promote physical distancing of vulnerable employees and other employees. In considering what measures to implement, employers should consider vulnerable employees on an individual basis and employers should take advice from occupational medical practitioners in this regard. It must be noted that certain industries may apply additional, and possibly more stringent rules in this regard and processes for how these employees can be assessed to go back to work.
Employers may also consider the following special measures -
- separation from other employees;
- reduced / alternative working hours;
- additional personal protective equipment; or
- exclusive entrances/exits/ablution facilities.
If in assessing the risk an employer determines that there are no special measures that would render the workplace safe for a particular vulnerable employee(s) (unable to work remotely), the employer will need to consult with such employee(s) in order to reach agreement on an alternative arrangement. Employers should avoid taking any decisions regarding vulnerable employees that could be discriminatory.
Alternative measures that an employer may consider include -
- reassigning vulnerable employees to lower risk positions for a temporary period;
- awarding special paid leave;
- requiring employees to take annual leave; or
- reducing pay or adjusting the pay model.
Importantly, where the employer seeks to change terms and conditions of employment (for example where the employee's position is a term and condition of employment), such changes may only be made by agreement between the employer and employee.
Should the employee not wish to participate in these initiatives voluntarily and insist on going into the workplace despite the employer's risk assessment, we recommend that the vulnerable employee be requested to sign a declaration that he/she has been informed of the fact that he/she is vulnerable and that he/she refused to enter into discussions regarding alternatives to employment or measures that would address the vulnerability.