The regulations setting out the conditions and restrictions for Alert Level 4 were published on 29 April 2020.
The Regulations place a number of obligations on employers engaged in essential and permitted services to contain the spread of COVID-19.
The employer must designate a COVID-19 Compliance Officer who is required to oversee the implementation of the Workplace Plan and adherence to the standards of hygiene and health protocols relating to COVID-19 at the workplace.
Employers must develop a Workplace Plan for the phased return of their employees to the workplace, prior to reopening the workplace for business. This Plan must correspond with Annexure E to the Regulations, and must contain the following information:
- which employees are permitted to work;
- what the plans are for the phased-in return of employees to the workplace;
- the health protocols that are in place to protect employees from COVID-19; and
- the details of the COVID-19 Compliance Officer.
Annexure E of the Regulations provides that the Plan for small businesses can be basic, reflecting the size of the business. Although the term ‘small business’ is not defined in the AL4 Regulations, when read with the Occupational Health and Safety Direction of 28 April 2020 we take the view that small businesses are those with fewer than 10 employees.
Medium and large businesses (with 10 or more employees) must have a more detailed Plan, which must include the following:
- the date the business will open and operating hours;
- the timetable setting out the phased return to work of employees to enable appropriate measures to be taken to avoid and reduce the spread of COVID-19 in the workplace;
- the steps taken to get the workplace COVID-19 ready;
- a list of staff members who can work from home, who are 60 or older, and staff with comorbidities, who will be required to stay at home or work from home;
- arrangements for staff in the establishment (including sanitary and social distancing measures, screening facilities and systems, attendance record system and infrastructure, the designated area where the public is served, canteen and bathroom facilities, testing facilities for establishments with more than 500 employees, staff rotational arrangements); and
- arrangements for customers or members of the public, including sanitation and social distancing measures.
The employer must develop measures to ensure that the workplace meets the standards of health protocols; adequate space for employees; and social distancing measures for the public and service providers, as required. It is important that the employer adheres to the principles required in the Directive.
Regulation 5(5) of the Regulations sets out the substantive requirements for the measures that must be taken. The overarching principle is that physical distancing must be implemented, and the measures must accordingly include the following:
- measures to enable employees to work from home, or to minimise the need for employees to be physically present at the workplace;
- restrictions on face-to-face meetings;
- special measures for employees with known or disclosed health issues or comorbidities, or any condition which may place such employees at a higher risk of complications or death if they are infected with COVID-19 (health risks); and
- 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.
‘Special measures’ are not defined, but would mean measures over and above the ‘normal/ ordinary’ measures that must be taken by an employer. Measures such as ensuring adequate space, providing employees with cloth masks, providing hand sanitizers, soap and clean water, limiting face to face meetings, and requiring employees who can work from home to do so, are ordinary measures.
‘Special measures’ would be additional measures to protect the above vulnerable groups of employees. These could include working from home, additional personal protective equipment (such as visors), workplace redesign where possible, temporary allocation of alternative functions e.g. such as switching a telephone receptionist with a front of house receptionist, and so on.
The List of Employees
Every employer must compile a list of employees in the Plan comprising the following categories:
- those who can work from home;
- those who are older than 60; and
- those with health conditions or comorbidities.
An employee may fall into more than one of the above categories.
In order to prepare this list, the employer would need to request the information from the employees. This is a voluntary disclosure and the general rule that such information may only be processed with the employee’s informed consent shall apply. An employee can accordingly not be sanctioned for not making the disclosure.
Where the employer is aware, as a result of a previous voluntary disclosure by the employee, of the employee’s underlying health condition, it may use this information for purposes of compiling the list. Certain employers have on-site clinics who hold the employees’ health information. This information is not necessarily ‘in the possession’ of the employer, and independent advice may need to be obtained regarding the processing and use of such information.
Are employees who are over the age of 60 and/ or who have comorbidities, precluded from accessing the physical workplace?
It is important to remember that with any category of employee, if s/he can work from home or reasonably practicable steps can be taken to enable this, the employer should permit her/ him to work from home.
Questions on the restrictions of the Regulations, therefore, only apply to those categories of employees who cannot work from home.
Annexure E of the Regulations specifically provides that the list must include ‘staff with comorbidities, who will be required to stay at home or work from home’. There are various ways of interpreting this sentence.
One interpretation is that the list should include all staff with health conditions with the consequence that they must all stay at home and work from home, where possible. If they are not able to work from home then the principle of ‘no work/ no pay’ would apply, or the employer could require such employees to take their accrued annual leave. On this interpretation, this category of employees would be legally precluded from attending the workplace.
Another interpretation is that the list should only include those employees who will, in fact, be required by the employer (in terms of its safety measures) to stay at home or work from home. On this interpretation, the list will not contain the names of other staff who fall into this category and who will indeed be required by the employer to attend at the workplace.
There is nothing in the substantive obligations contained in the Regulations that imposes an obligation on employees in this category not to come to the workplace. In addition, the provisions of Regulation 5(5) which require that special measures be developed for, among others, employees with health risks and comorbidities must have a specific purpose.
If the phrase in Annexure E, that these employees ‘will be required to stay at home’, is interpreted to mean that they may not come to work, what would the purpose be of taking ‘special measures’? We accordingly take the view that, on a proper interpretation of the Regulations as a whole, provision is made for requiring those employees who have health risks or comorbidities to attend at work (where it is absolutely necessary and cannot be done from home) provided that the employer implements special measures to ensure their health and safety.
With acknowledgment and thanks to Bowmans Attorneys