30 November 2020 by Employment Law Alert

The return to work of vulnerable persons

On 10 November 2020, the Department of Health (DOH) issued an updated guideline in relation to the return to work of employees who are classified as “vulnerable persons” (Updated Guideline). Vulnerable persons are defined as those with co-morbidities and/or persons over the age of 60 years old who have an increased risk of severe COVID-19. The Updated Guideline was published pursuant to the Guideline Document on Vulnerable Persons published by the DOH on 25 May 2020, which encouraged persons who were categorised as “vulnerable persons” to remain working from home or, insofar as possible, to be accommodated in the workplace where they are required to return due to the nature of their role.

The Updated Guideline sets out the manner in which vulnerable persons may now return to the workplace, provided it is safe for them to do so, taking into account both the decreased rate of infections and the possibility of a resurgence.

The purpose of the Updated Guideline is to assist employers in making the determination as to whether a vulnerable employee should return to the workplace or not.

In deciding whether a vulnerable person should return to work, the Updated Guideline recommends that an employer consider the following:

(i)    the employees age and co-morbidities: reference is to be made to the distinction between vulnerable employees and highly vulnerable employees as contained in Annexure B of the Updated Guideline;

(ii)   the risk of exposure due to the employee’s current job description: employer are encouraged to assess the employees current job description and to eliminate or mitigate the risk of exposure to COVID-19 by accommodating the employee through measures such as alternative temporary placements, additional PPE, protected isolation, barriers and the like. The level of risk associated with an employee’s current job description is to be assessed in line with the Department of Employment and Labour’s risk classification scale; and

iii)   the risk of community transmission based on the district COVID-19 positivity rates: District COVID-19 positivity rates are calculated on the basis of the number of infections in the preceding 14 days and are published on the website of the National Institute for Communicable Diseases bi-monthly.

The Updated Guideline contains recommended action based on job description and district positivity rates in Annexure A thereto.

Finally, the Updated Guideline recommends that the following vulnerable employees should remain at home:

  • very vulnerable employees with one or more medium, high or very high-risk factors outlined in Annexure A of the Updated Guideline; and
  • employees who have a comorbidity with a high or very high-risk factor outlined in Annexure A of the Updated Guideline.

When determining whether vulnerable persons should return to the workplace, employers should consider the provisions of the Updated Guideline.

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