BCHC: Are vulnerable employees permitted to return to the workplace during alert level 4 of the national lockdown?

Many employers and employees are under the impression that vulnerable employees who have comorbidities or who are older than 60 (resulting in a higher risk of possible complications or death if they are infected with COVID-19) are prohibited from returning to the workplace.

This is however not correct as there is no specific provision prohibiting those employees from entering the workplace in the Disaster Management Regulations relating to alert level 4 of the national lockdown or in the Directive relating to the Covid-19 Occupational Health and Safety Measures in Workplaces (the Covid-19 OHS Directive) which were published on 29 April 2020.

• Regulation 5(5) of the Disaster Management Regulations (the Regulations) explains that “All employers must adopt measures to promote physical distancing of employees, including … (d) special measures for employees with known or disclosed health issues or comorbidities, or with any condition which may place such employees at a higher risk of complications or death if they are infected with COVID -19; and (e) special measures for employees above the age of 60 who are at higher risk of complications or death if they are infected with COVID-19.”
• Annexure E to the Regulations provides that “a list of staff who can work from home, staff who are 60 years or older; and staff with comorbidities who will be required to stay at home or work from home” must be included in employers’ workplace plans for medium and large businesses.
• Annexure A to the Covid-19 OHS Directive is a sectoral guideline template that requires a risk assessment to be done for, “identification of vulnerable workers and special measures for their protection including protection against unfair discrimination and victimization”.

There is thus no prohibition on vulnerable employees performing a permitted service under alert level 4 from returning to work.  However, there is an obligation on employers to allow employees to work from home if they are able to do so and special measures should be put in place to protect vulnerable employees who are not able to work from home.

The special measures to be implemented to protect these vulnerable employees are not explained or detailed in the Regulations or the Covid-19 OHS Directive as it will differ from one workplace to another and will depend on the specific work that the vulnerable employees do. In addition to mandatory facemasks, hand washing facilities and sanitiser, special measures could include installing physical barriers between these employees and other employees, providing extra personal protective equipment (PPE) such as face shields and visors, increasing the social distancing requirements between other employees and these employees (for instance from 1,5 meters to 3 meters if the workplace allows for it), limiting these employees’ contact with clients, customers and suppliers by adjusting their duties and implementing a rotation system so that these employees are only at the office during times when there are fewer employees in the workplace.   These are only a few examples and employers will have to do a risk assessment to ascertain what special measures should and can be implemented.

If employers fail to protect their vulnerable employees they could be met with those employees refusing to return to the workplace until special measures are put in place; a temporary closure of their business as a result of infected employees or due to non-compliance as provided for in clause 42 of the Covid-19 OHS Directive read with section 30 of the Occupational Health and Safety Act, 85 of 1993 (the OHSA); a fine or even imprisonment in terms of section 38 of the OHSA.

Employers can however not simply exclude all their vulnerable employees from the workplace on the basis of their comorbidity or age as an “easy way out” to deal with their obligation to put special measures in place for these employees.  Doing so could result in unfair discrimination claims being referred by those employees.  Employers should therefore assess on a case by case basis whether its vulnerable employees should be allowed to come to work or not based on their specific underlying medical conditions or age and the measures that the employer can reasonably be required to put in place to protect these employees.

It is however imperative that employers identify these special measures in their workplace plans to protect and accommodate their vulnerable employees, as required in terms of the Regulations and the Covid-19 OHS Directive, before they allow these employees to return to work.