Guidance to employers in respect of vulnerable employees - Covid-19

The Department of Health has provided employers with guidelines on how to deal with vulnerable employees once these employees return to their respective workplaces.

In the context of the Occupational Health and Safety Act (No. 85 of 1993) an employer must provide ‘a working environment that is safe and without risk to the health and safety of his/her employees’. In addition, an employer has an obligation to ensure that where hazards cannot be eliminated, ‘they be appropriately controlled to prevent a risk of an adverse health outcome’.

The guidelines identify special measures, as contemplated in the Department of Employment and Labour’s Covid-19 OHS regulations, that should be implemented by employers in respect of all vulnerable employees. In terms of the guidelines, employers are to implement a process to identify employees who:

• are at a high risk of developing serious illness due to Covid-19; or

• reside with or care for a person(s) that are a high risk for severe illness.

Who is a vulnerable employee in the context of Covid-19?

The guidelines identify the following as a non-exhaustive list of major risk categories:

• Employees 60 years and older

• An employee with one or more of the following underlying commonly encountered chronic medical conditions (of any age) particularly if not well controlled:

• chronic lung disease: moderate to severe asthma, chronic obstructive pulmonary disease (COPD), bronchiectasis, idiopathic pulmonary fibrosis, active TB and post-tuberculous lung disease (PTLD);

• diabetes (poorly controlled) or with late complications;

• moderate/severe hypertension (poorly controlled) or with targeted organ damage;

• serious heart conditions: heart failure, coronary artery disease, cardiomyopathies, pulmonary hypertension; congenital heart disease

• chronic kidney disease being treated with dialysis; and/or

• chronic liver disease including cirrhosis.

• Severe obesity (a body mass index [BMI] of 40 or higher)

• More than 28 weeks pregnant (and especially with any of the co-morbidities listed above):

• Immunocompromised as a result of cancer treatment, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, prolonged use of corticosteroids and other immune weakening medications;

If an employee suffers from any of the aforementioned illnesses, the employee should be assessed by his/her attending medical practitioner. In the event of the employee not being able to afford this cost, the employer is expected to carry this cost.

The doctor should provide a confidential note to the employer indicating the presence of one or more of these conditions, without providing a diagnosis. Should the employee suffer from a different, unlisted condition which renders him/her vulnerable, the doctor is required to provide a motivation to this effect to the employer.

What are the employer's responsibilities?

In terms of the guidelines the employer has the following responsibilities:

• Employers are required to have a clear and transparent policy and appropriate procedures in place to address the specific need of vulnerable employees beyond the workplace risk control measures for all employees.

• Employers are required to ensure that potential exposure to the SARS-CoV-2 virus in respect to a vulnerable employee in the employee’s current job is eliminated, or significantly reduced, in order that the risk of infection is substantially reduced.

In the event of the employer not being able to eliminate or reduce the risk of infection, the employer should, in consultation with the employee, explore other temporary workplace accommodation alternatives, without reducing the employee’s benefits These measures could include, inter alia, the following:

• the provision of alternative temporary placement / redeployment to a different role and responsibility which has a negligible risk for transmission;

• the restriction of certain duties (such as not allowing them to perform high risk procedures);

• protective isolation (e.g. providing them with a dedicated, clean office, etc.);

• the provision of specific Personal Protective Equipment (PPE) appropriate to the risk of the task/activity identified in the workplace risk assessment, and adherence to PPE usage protocols;

• the institutialising of stricter physical distancing protocols (including staggering of shifts), barriers or additional hygiene measures; and

• the limitation of duration of close interaction with clients, colleagues and/or the public and reducing external risks (such as the use of public transport) by providing alternative transport arrangements where feasible.

In the event of none of the aforementioned steps being possible/feasible, the employer should consider allowing the employee to work from home.

Should it not be possible for the employee to work from home, the employer could consider the following alternatives:

• granting the employee temporary incapacity for the period of the COVID-19 epidemic

• should this not be possible, the employee should be able to utilise his/her sick leave if appropriate, as advised by the treating doctor/occupational medical practitioner

• should sick leave be exhausted, the employee should be able to utilise his/her annual leave

• where applicable, the eligibility of the employee to receive additional company benefits and/or UIF (may be topped up by TERS benefit) should be considered; and

• unpaid leave is not recommended and if contemplated, should be the last resort.

Should it not be possible to accommodate the employee through any of the above measures, and the employee is thus unable to work, the employer must maintain all employer related medical aid benefits in respect of those employees already eligible for such benefits until the employee is deemed to be eligible to return to work.

The returning to work of vulnerable employees

Where a vulnerable employee has contracted Covid-19, the following steps need to be taken by the employer before the employee may return to work. The employer must:

• ensure adequate worker’s compensation claim processing and rehabilitation if the exposure was work-related;

• ensure that any sick leave related to a workplace-acquired COVID-19 related illness is managed under COIDA procedures;

• employees with mild illness (not requiring hospitalisation) should complete the mandatory 14 days isolation/quarantine period and return to work thereafter;

• employees who have been hospitalised due to COVID-19 prolonged illness and complications should be assisted by the employer to ensure integration back at work

• a fitness to work medical evaluation should be performed in those cases with moderate to severe illness by an occupational medical practitioner/specialist and occupational therapist, where appropriate, to assess the presence and degree of clinical deficits (e.g. lung function impairment) and health problems related to ICU (muscle weakness, memory and concentration problems, mental illnesses) since these employees may require prolonged work adjustment; and

• rehabilitation may be recommended by the occupational therapist and other allied health professionals as appropriate.

Stay safe, stay healthy and remain optimistic during alert level 3!

Visit www.dynamixhrsolutions.com for professional HR & IR guidance during Covid-19 and beyond.

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Note: This article was originally published on 1 June 2020.