Since our previous article on vulnerable employees and the workplace the Minister of Employment and Labour has published a revised Covid-19 Direction on Health & Safety in the workplace (Direction).
In terms of the Direction, vulnerable employees include any employee:
- With known or disclosed health issues or comorbidities or any other condition that may place the employee at a higher risk of complications or death than other employees infected with Covid-19;
- Above the age of 60 years who is at high risk of complications or death if infected with Covid-19.
Employers must take special measures to mitigate the risk of Covid-19 for vulnerable employees to ensure that they return to work safely or that they can continue working from home. Measures taken by employers should be informed by the Department of Health’s specific guidance note on vulnerable employees and workplace accommodation in relation to Covid-19 (Guidance Note). Although the Guidance Note simply provides guidelines and it is not law, employers are well advised to consider implementing it as far as possible. With the Guidance Note in mind, this article provides a summary of the key considerations for employers.
Employers must identify vulnerable employees
Employers must take steps to identify vulnerable employees as well as employees who reside or care for persons that are vulnerable persons. In line with the definition of vulnerable employees in the Direction, the Guidance Note lists the major categories of employees at risk of severe illness from Covid-19:
- Persons who are 60 years and older;
- Persons with one or more underlying chronic medical conditions (of any age) and particularly where such conditions are not well controlled (eg chronic lung disease, diabetes, hypertension and serious heart conditions);
- Persons with severe obesity (ie body mass index of 40 or higher);
- Persons who are immunocompromised as a result of certain medical treatment (eg cancer treatment);
- Persons who are pregnant (28 weeks and above especially persons with any of the co-morbidities mentioned above).
Vulnerable employees to be assessed
A vulnerable employee should be assessed by his or her treating doctor. To the extent that the employee cannot afford to consult a doctor, the employer should cover such costs. After assessment, the doctor should provide the employee with a confidential medical note indicating the presence of any of the above conditions (without specifying the diagnosis) or any other condition which renders the employee vulnerable.
The doctor should also ensure that the employee’s health condition is “fully optimized”. In other words, the employee may be required to undertake flu vaccinations or require continuous advice to comply with a specific treatment plan.
Protecting and managing vulnerable employees
Employers should formulate a clear and transparent policy and procedure on how to address the specific needs of vulnerable employees. Appropriate measures should be implemented that take the individual circumstances of vulnerable employees into account. Such measures may include ensuring potential exposure to Covid-19 in the employee’s current role is eliminated or reduced. If this is not possible, temporary workplace accommodation should be considered which may include:
- alternative temporary placement or redeployment to a different role;
- restriction of duties;
- protective isolation (eg providing employee with his or her own office);
- provision of specific personal protective equipment;
- stricter physical distancing protocols (including staggering of shifts), barriers or additional hygiene measures);
- limit employee’s duration of close interaction with other people whilst at work;
- provision of alternative transport arrangements (where feasible).
If temporary workplace accommodation is not possible, the employer should consider making it possible for the vulnerable employee to work from home.
Leave for vulnerable employees
In the event that temporary incapacity is recommended by a treating doctor, the vulnerable employee may qualify for income replacement benefits through an existing insurance scheme. If this is not possible, the employee should be placed on paid sick leave. If sick leave is exhausted, the employee should be permitted to use annual leave.
The employer may be able to apply for relief under the C-19 TERS scheme if the employee’s working time is reduced or temporarily stopped due to operational reasons.
The employer should also consider whether it is possible for the employee to receive any other company benefits.
Kirsten Eiser, Nivaani Moodley and Shane Johnson are all at Webber Wentzel.