Potential challenge – new directive by Department of Health – vulnerable employees

Potential challenge – new directive by Department of Health – vulnerable employees

Business, Coronavirus Reliefs, Human Resources

The Department of Health issued a new directive in late May to protect vulnerable employees from Covid-19 infection. While well intentioned the directive has the potential to offer some employees a way to get out of doing any work while still being paid. We have reproduced the directive and then look at this risk and how to mitigate it.

What is our concern?

In summary the directive creates quite onerous obligations for employers and requires employers to look after vulnerable employees (including the elderly, late pregnancies and severely obese employees) and provide them with an opportunity to see a doctor about their comorbidity vulnerabilities. This may end up in the doctor recommending the employee remain at home and/or take sick leave while requiring the employer to continue paying a salary while on sick leave and continue paying any medical aid benefit. Given the nature of some employees this seems to us to be an ideal opportunity for shirkers to be paid for doing nothing where the circumstances don’t warrant it. We would therefore recommend employers either work through a company appointed doctor so they can control the process or alternatively provide the employee with a detailed description of the safety precautions being taken at the workplace for presentation to the doctor (also requiring the doctor to confirm by signing that they have read the precautions). Feel free to contact us to discuss.

Note: non-compliance with the directive could be seen as non-compliance with the OHSA Act which carries some potentially quite stiff penalties for managers in their personal capacity.

In relation to the actual requirements of the directive:

What does the directive say? (source: Ministry of Health)

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

Section 5, subsection 5 (d) and (e) of the Regulations issued in terms of section 27(2) of the Disaster Management Act, 2002, specifically requires employers to adopt “special measures for employees with known or disclosed health issues or comorbidities, with any condition which or may place such employees at a higher risk of complications or death if they are infected with COVID -19; and “special measures for employees above the age of 60 who are at a higher risk of complications or death if they are infected with COVID-19.”

COVID-19 is a new disease and there is limited information regarding individual risk factors for an infected person with complications and needing higher levels of medical intervention. In order to minimise the adverse consequences of COVID-19 on selected persons, employers should implement a process in identifying employees who:

  • are at high-risk of developing severe illness from COVID-19; or
  • reside with or care for persons that are at high-risk for severe illness from COVID-19 (including family members, aged parents etc.)

The major categories of vulnerable employees include:

  1. 60 years and older
  2. One or more of the 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 target organ damage
    • serious heart conditions: heart failure, coronary artery disease, cardiomyopathies, pulmonary hypertension; congenital heart disease
    • chronic kidney disease being treated with dialysis
    • chronic liver disease including cirrhosis
  1. Severe obesity (body mass index [BMI] of 40 or higher)
  2. 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
  3. >28 weeks pregnant (and especially with any of co-morbidities listed above)


Assessing a vulnerable employee

  1. The employee should be assessed by his/her treating doctor, or, in the event that a worker cannot afford such costs, the employee should be assessed by a doctor, at the expense of the employer (noting the doctor-employee confidentiality) and preferably one who has insight into the workplace and its processes.
  2. The doctor should provide a confidential note to the employer, indicating the presence of any of the above conditions, without specifying the diagnosis. Should the employee have a condition not listed above, which in the opinion of the doctor renders this employee vulnerable a motivation would be necessary. The treating doctor should refrain from commenting on the employee’s fitness to work.
  3. The doctor should ensure that the employee’s health condition is fully optimized, which may include:
    • recommending flu vaccinations (and pneumococcal vaccine where appropriate)
    • INH prophylaxis for workers as stipulated in the Department of Health’s guidelines
    • continuous advice on maintaining compliance with treatment plan
    • the employee has adequate supply of chronic medication for up to 6 months
    • advise the employee not to delay getting emergency care for their underlying condition
    • advise employee to maintain ongoing health consultations if they have any concerns
    • ensure that the employee has access to psychosocial support for new onset or exacerbation of pre-existing mental illness


Protecting and managing vulnerable employees in the workplace:

  1. Employers should have a clear and transparent policy and appropriate procedures to address the specific needs of vulnerable employees beyond the workplace risk control measures for all employees. These policies and procedures should be based on legislative provisions specific to their sector.
  2. These measures need to take into account the individual circumstances of the employee in relation to their work environment and activities and would include:

2.1 Ensuring that potential exposure to the SARS-CoV-2 virus by this employee in their current job is eliminated or reduced such that the risk for infection is substantially minimised

2.2 If potential exposure cannot be eliminated or reduced, then the employer, in consultation with the relevant employee, should explore other ways of temporary workplace accommodation to prevent the risk of infection. These accommodations should be granted based on optimal utilisation of the employee’s skills/competencies, without a reduction in benefits and accompanied with adequate training where appropriate:

        • alternative temporary placement / redeployment to a different role and responsibility which has a negligible risk for transmission
        • restriction of certain duties (not allowed to perform high risk procedures)
        • protective isolation (e.g. providing a dedicated, clean office, etc.)
        • provision of specific PPE appropriate to the risk of the task/activity identified in the workplace risk assessment and adherence to PPE usage protocols
        • stricter physical distancing protocols (including staggering of shifts), barriers or additional hygiene measures
        • limit duration of close interaction with clients, colleagues and/or the public reducing external risks (use of public transport) by providing alternative transport arrangements where feasible

2.3 If the above steps are not possible, then consideration should be given to allowing the employee to work from home if able to do so, and the necessary equipment, internet access, etc. is available

     3. Leave procedures:

    • temporary incapacity, for the period of the COVID-19 epidemic, may be motivated by the treating doctor /occupational medical practitioner on the grounds that workplace accommodation is not possible
    • 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 if an employee’s working time is reduced or temporarily stopped due to operational reasons (workplace functioning at 50% of capacity), an application can be made to the Department of Employment and Labour for the TERS benefit (COVID-19 temporary relief scheme)
    • 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
    • unpaid leave is not recommended and if contemplated, should be the last resort

4. Ensure employee’s existing health benefits are ensured:

  • maintain all employer-related medical aid benefits for employees already eligible for benefits until the employee is deemed eligible to return to work

Return to work (RTW) and incapacity management of the vulnerable employee post COVID-19 illness

  • ensure adequate worker’s compensation claim (WCA/COID) processing and rehabilitation if 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 and return to work
  • employees that have been hospitalised due to COVID-19 prolonged illness and complications should be assisted by the employer to ensure RTW integration
  • a fitness to work medical evaluation should be performed in those 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 ill health) since these employees may require prolonged work adjustment
  • rehabilitation may be recommended by the occupational therapist and other allied health professionals as appropriate