SEIFSA .

Attached please find a MEIBC Industry Circular regarding the resumption to full operations of the MEIBC to serve the industry subsequent to the lowering of the lockdown alert from Level 4 to Level 3 as from Monday, 1 June 2020.

The Alert Level 3 Regulations in terms of the Disaster Management Act were signed on 28 May 2020. Except for those businesses and institutions that are expressly excluded businesses may operate and employees may travel to and from work.

Travel permits:

Employers must issue permits to their employees where the employees will be required, in the course of carrying on work responsibilities or performing a permitted service, to travel between provinces, metropolitan areas, districts and ‘hotspots’.

It seems that apart from these categories of employees, people will, strictly speaking, not be required to be in possession of a permit in order to travel to and from work, but the cautious approach is to ensure that employees are provided with permits.

More than 100 employees:

Businesses and institutions with more than 100 employees must, where possible, make provision for minimising the number of employees at the workplace at any given time in order to achieve social distancing and to limit congestion in public transport. This can be done through:

• rotation of workers;
• staggered working hours;
• shift systems; and
• remote working arrangements and similar measures.

Compliance officers:

Irrespective of their size, all businesses, industries and entities that are permitted to operate must designate a COVID-19 Compliance Officer.  The Compliance Officer must oversee the implementation of the employer’s workplace plan as well as adherence to the standards of hygiene and health protocols relating to COVID-19 in the workplace.

Workplace Plan:

Employers that have not done so already must prepare a workplace plan, dealing with the following issues:

• which employees are permitted to work;
• what the plans for the phased-in return of their employees to the workplace are;
• what health protocols are in place to protect employees from COVID-19; and
• the details of the COVID-19 compliance officer.

Small employer refers to employers with fewer than 10 employees.

Small employers may have basic plans dealing with, at the minimum, the items above.

Medium and large employers must have workplace plans setting out the following, as set out in Annexure E to the Regulations:

• the date the business will open and the hours of operating;
• the timetable for the phased return to work of employees;
• the steps taken to make the workplace COVID-19 ready;
• a list of staff who can work from home, those who are 60 years and older, and those who have underlying illnesses (i.e. comorbidities);
• arrangements for staff relating to social distancing, screening, attendance record system, etc.; and
• arrangements for customers or members of the public.

Workplace plans must be retained for inspection.

Phased-in return to work:

Businesses, industries and entities must phase in the return of employees to work, to manage the return of employees from other provinces, metropolitan areas and districts.

Health protocols:

Businesses, industries and entities must develop measures to ensure that the workplace meets the standards of health protocols, adequate space for employees, and social distancing measures for members of the public and service providers.

All the relevant health protocols and social distancing measures set out in the applicable Directives, and applicable sector-specific health protocols, must be adhered to. This includes the Occupational Health and Safety Directive issued by the Minister of Employment and Labour.

Over 60s and those with co-morbidities:

Employers must implement special measures for employees who are 60 years and older, or those with co-morbidities, to facilitate their safe return to work. Where possible, these employees should work from home.

500 and more employees:

Construction, manufacturing, business and financial services firm with more than 500 employees must finalise appropriate sector workplace arrangements or compacts. These arrangements must address:

• the provision of transport, or arrangements to transport the employees coming to site, but where this is not possible, the staggering of working time arrangements to reduce congestion in public transport;
• staggering the return to work of employees to ensure workplace readiness and to avoid traffic congestion during peak travel times;
• the daily screening of employees for COVID-19 symptoms;
• referring employees who display symptoms for medical examinations and testing, where necessary; and
• submitting data collected during the screening and testing process to the DG of the Department of Health.

You will by now be aware that the Pretoria High Court (the “Court”) declared the Lockdown Alert Level 3, as read with the Lockdown Alert Level 4 Regulations, (the “Regulations”) unconstitutional and invalid. The Presidency media statement is attached for your information.

In summary, the Court declared the Regulations unconstitutional and invalid for the following reasons:

1. they are not rationally connected to the objectives of slowing the rate of infection or limiting the spread of COVID-19; and
2. insofar as they do not satisfy the rationality test, their encroachment on, and limitation of, the rights guaranteed in the Bill of Rights are not justifiable in an open and democratic society based on human dignity, equality and freedom.

The declaration of invalidity has been suspended for a period of 14 business days (i.e. until 22 June 2020), or such longer time as the Court may allow, to enable the Minister of Cooperative Governance and Traditional Affairs, in consultation with the relevant Ministers, to review, amend and re-publish the Regulations with due consideration to the limitation each regulation has on the rights guaranteed in the Bill of Rights.

During this period of suspension, the Lockdown Alert Level 3 Regulations, as read with the Lockdown Alert Level 4 Regulations, will continue to apply.

View pdf below

The UIF has opened May applications for TERS.

Employers who wish to submit May applications for TERS are encouraged to visit the TERS application website to apply: uifecc.labour.gov.za/covid19.

The application process has been modified and now provides applying employers with the option to select whether TERS benefits should be paid to the employer or whether TERS benefits should be paid to individual employees directly.

Employers will be entitled to receive TERS benefits if they wish to recover funds from the UIF where the employer has advanced TERS benefits to employees or where employees have been required to take annual leave.

Where employers refuse to apply for TERS benefits on behalf of its employees, such employees are entitled to individually apply for TERS benefits on uFiling: https://www.ufiling.co.za/uif.

New amendments to TERS Directive:

 The TERS Directive now incorporates a new definition for worker after new amendments were gazetted on 26 May 2020. Clause 1.1.9 of the TERS Directive defines worker to mean:

a) A contributor; or

b)An employee as defined in the Ul Act who should have received benefits under this Directive but for circumstances beyond that employee’s control, namely that the employer failed to: 

 I. The register as an employer in contravention of section 10(1) of the Unemployment Insurance
Contributions Act, 2002 (Act No. 4 of 2002);

II.Provide details relating to the employees  in contravention of section 10(3) of that Act and
accordingly not registered as contributors; or

III.Pay the contributions contemplated in section 5(1) of that Act in respect of that employee.

The TERS Directive now provides that workers who have lost income or have been required to take annual leave are entitled to TERS benefits.

Following up on your TERS applications:

If employers would like to follow up on the status of their TERS applications, they can contact the UIF as follows:

·       TERS call centre: 0800 030 007 / 0800 843 843

·       Email: Covid19TersSupport@labour.gov.za

·       TERS Application Website: www.uifecc.labour.gov.za/covid19

The Department of Employment & Labour (DEL) and Unemployment Insurance Fund (UIF) also regularly provide updates on TERS via their respective Twitter pages which can be accessed as follows:

·       DEL: @deptoflabour

·       UIF: @UIFBenefits