17 June 2020 by Cliffe Dekker Hofmeyr Employment Alert

Updating workplace plans to include “vulnerable persons”

On 25 May, the Department of Health issued a guidance document related to the treatment of “vulnerable persons” in the workplace. (Guidance Document). The Guidance Document expanded on the list of persons who are at particular risk of experiencing severe effects should they contract COVID-19. Pursuant to the Guidance Document, the Department of Employment and Labour issued further regulations consolidating occupational health and safety measures in workplaces who have commenced operations, replacing the directive issued on 29 April 2020. Employers are therefore required to update their workplace plans to include provisions related to, inter alia,vulnerable persons”.

List of vulnerable persons:
  • Persons over the age of 60.
  • Persons who have comorbidities.
  • Persons with chronic lung disease.
  • Persons with diabetes or with late complications.
  • Persons with moderate/severe hypertension (poorly controlled) or with target organ damage.
  • Persons with serious heart conditions: heart failure, coronary artery disease, cardiomyopathies, pulmonary hypertension; congenital heart disease.
  • Persons with chronic kidney disease being treated with dialysis.
  • Persons with chronic liver disease including cirrhosis.
  • Persons with severe obesity (BMI of 40 or higher).
  • Persons who are immunocompromised.
  • Employees who are beyond 28 weeks pregnant (and especially with any of co-morbidities listed above).
Protocol regarding vulnerable persons:
  • Work from home where possible.
  • If not possible, must be assessed by a medical practitioner at their own expense or where they cannot afford one, at the expense of the employer.
  • The assessing medical practitioner should provide a confidential note to the employer indicating the presence of a condition that may render the employee high risk, from the list contained in the Guidance Document, without giving a specific diagnosis.
  • Where the employee has a condition that is not listed in the Guidance Document, but that may nevertheless render the employee a vulnerable employee, a motivation from the medical practitioner is necessary.
  • The medical practitioner should ensure that the employees’ health condition is fully optimised which may include recommending flu vaccinations and continuous advice on maintaining a compliance and treatment plan.
Where a vulnerable person returns to the workplace, an employer may consider the following measures to take upon their return:
  • Alternative temporary placement/ redeployment of the employee.
  • Restriction on certain duties and a prohibition on performing high risk procedures.
  • Stricter physical distancing protocols, barriers or additional hygiene measures.
  • Protective isolation.
  • Specific PPE appropriate to the risk of the tasks/activities assigned to the employee.
Applicable leave procedures for employees who cannot work from home and who are not permitted to return to the office:
  • Temporary incapacity, motivated by a medical practitioner/ occupational medical practitioner.
  • Where temporary incapacity is impossible, the employee should be entitled to use their sick leave if appropriate.
  • Where an employee’s sick leave is exhausted, employees may use their annual leave, where an employee’s working time is reduced or temporarily stopped, an employee may be entitled to special leave in terms of Ters.
  • Where applicable, the business must assess the eligibility of the employee to receive additional company benefits and/or UIF.
  • Unpaid leave in these circumstances is not recommended and should be a measure of last resort.
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