MAY APPLICATIONS FOR COVID-19 TERS ARE NOW OPEN
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/
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.
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@
· TERS Application Website: www.uifecc.labour.
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
ADDRESS BY PRESIDENT CYRIL RAMAPHOSA ON SOUTH AFRICA’S RESPONSE TO THE CORONAVIRUS PANDEMIC
Fellow compatriots,
Ri perile, Dumelang, Sanibonani, Molweni, Ndi madekwana, Gooie naand, Good
evening.
It is exactly 10 weeks since we declared a national state of disaster in response to the coronavirus pandemic.
Since then, we have implemented severe and unprecedented measures – including a nation-wide lockdown – to contain the spread of the virus.
I am sorry that these measures imposed a great hardship on you – restricting your right to move freely, to work and eke out a livelihood.
As a result of the measures we imposed – and the sacrifices you made – we have managed to slow the rate of infection and prevent our health facilities from being overwhelmed.
We have used the time during the lockdown to build up an extensive public health response and prepare our health system for the anticipated surge in infections.
Now, as we enter the next phase of our struggle against the coronavirus, it is once again your actions that will determine the fate of our nation.
As individuals, as families, as communities, it is you who will determine whether we experience the devastation that so many other countries have suffered, or whether we can spare our people, our society and our economy from the worst effects of this pandemic.
We know that the most effective defence against this virus is also the simplest.
Washing our hands regularly, wearing a face mask, keeping at least a 1.5 metre distance from other people, avoiding touching our faces with unwashed hands and cleaning surfaces we touch regularly.
It is through diligently and consistently observing these basic practices that we will overcome this pandemic.
There are now 22,583 confirmed coronavirus cases in South Africa.
Around half of these people have recovered, either because their symptoms have been mild or because of the care they have received in our hospitals.
Tragically, some 429 people have died.
To their families, friends, and colleagues, we offer our deepest sympathies. Your loss is our loss.
There are now just over 11,000 active coronavirus cases in the country.
Of these, 842 patients are in hospital and 128 of these are in intensive care.
The number of infected people could have been much higher had we not acted when we did to impose drastic containment measures.
We are consequently in a much better position than many other countries were at this stage in the progression of the disease.
As a result of the drastic containment measures we have taken, we have been able to strengthen our health response.
As of today, we have conducted over 580,000 coronavirus tests and more than 12 million screenings.
There are nearly 60,000 community health workers who have been going door-to- door across the country to identify possible cases of coronavirus.
In preparation for the expected increase in infections, around 20,000 hospital beds have been, and are being, repurposed for COVID-19 cases, and 27 field hospitals are being built around the country. A number of these hospitals are ready to receive coronavirus patients.
At the same time, we have experienced several challenges, including a shortage of diagnostic medical supplies as a result of the great demand for these supplies across the world.
This has contributed to lengthy turnaround times for coronavirus testing, which in turn has had an impact on the effectiveness of our programmes.
The scale and the speed of the public health response to this emergency has been impressive, but there is still much more that we need to do.
We have known all along that the lockdown would only delay the spread of the virus, but that it would not be able to stop it.
Until there is a vaccine available to all, the coronavirus will continue to spread in our population. This means that we must get used to living with the coronavirus for some time to come.
There is a massive global effort to develop a vaccine, of which South Africa is part.
Government is supporting and funding several research projects, including a plan to locally manufacture coronavirus vaccines as soon as candidates are available. We will use the skills, expertise, infrastructure and organisations within the vaccines industry to produce and distribute the vaccine.
We have argued that should a vaccine be developed anywhere in the world it should be made freely and equitably available to citizens of all countries.
As scientists had predicted, the infections in our country have now started to rise sharply.
One-third of the cumulative confirmed cases were recorded in the last week alone.
And we should expect that these numbers will rise even further and even faster.
Various models have been built to predict the trajectory of the virus and help to inform our planning and budgeting.
These models tell us two important things.
Firstly, that the coronavirus pandemic in South Africa is going to get much worse before it gets better.
Secondly, and most importantly, they tell us that the duration, scale and impact of
the pandemic depends on our actions as a society and on our behaviour as individuals.
By following basic defensive practices, we can reduce both the number of infections and the number of deaths.
When I last addressed the nation, I said that we would undertake a process of consultation to guide the actions we must now take.
Since then, we have met with the leaders of political parties represented in Parliament and with business, trade unions and the community constituency. We have met with Premiers, mayors, representatives of the South African Local Government Association, traditional leaders and representatives of interfaith communities.
As we have done from the start of this crisis, we have also sought the advice of the Ministerial Advisory Committee on COVID-19, who are a group of highly qualified, respected and experienced scientists, clinicians, epidemiologists and public health experts.
We are extremely grateful for the work they have done and continue to do to ensure that our response is informed by the best available scientific evidence.
We appreciate the diverse and sometimes challenging views of the scientists and health professionals in our country, which stimulate public debate and enrich our response.
We have also been guided by advice from the World Health Organization and the Africa Centres for Disease Control and Prevention.
As we are dealing with a pandemic that affects the lives and livelihoods of all South Africans, it was important that we consult as widely as possible.
These consultations have been both necessary and worthwhile in that we received several constructive suggestions.
They have enriched the thinking in government, providing a direct view of the challenges that our people in different constituencies confront.
The groups we consulted are as diverse and as varied as the South African people themselves, and all agree that we acted appropriately and decisively to slow the spread of the virus.
They are all united in their insistence that our central goal must be to save lives and protect livelihoods.
While there are several areas of difference, all of these groups are in broad agreement on the approach we need to take to build on the gains we have made thus far.
While the nation-wide lockdown has been effective, it cannot be sustained indefinitely.
We introduced the five-level COVID-19 alert system to manage the gradual easing of the lockdown.
This risk-adjusted approach is guided by several criteria, including the level of infections and rate of transmission, the capacity of health facilities, the extent of the implementation of public health interventions and the economic and social impact of continued restrictions.
It is on the basis of these criteria – and following consultation – that Cabinet has determined that the alert level for the whole country should be lowered from level 4 to level 3 with effect from 1 June 2020.
Moving to alert level 3 marks a significant shift in our approach to the pandemic.
This will result in the opening up of the economy and the removal of a number of restrictions on the movement of people, while significantly expanding and intensifying our public health interventions.
Even as we move to alert level 3 it is important that we should be aware that there are a few parts of the country where the disease is concentrated and where infections continue to rise.
We will have a differentiated approach to deal with those areas that have far higher levels of infection and transmission.
These areas will be declared coronavirus hotspots.
A hotspot is defined as an area that has more than 5 infected people per every 100,000 people or where new infections are increasing at a fast pace.
The following metros have been identified as coronavirus hotspots: Tshwane, Johannesburg, Ekurhuleni, Ethekwini, Nelson Mandela Bay, Buffalo City and Cape Town.
The other areas that are hotspots are West Coast, Overberg and Cape Winelands district municipalities in the Western Cape, Chris Hani district in the Eastern Cape, and iLembe district in KwaZulu-Natal.
We are particularly concerned about the situation in the city of Cape Town and in the Western Cape generally, which now has more than half the total infections in the country.
We are attending to this as a matter of urgency.
The list of hotspot areas will be reviewed every two weeks depending on the progression of the virus.
In dealing with the virus in these areas we will implement intensive interventions aimed at decreasing the number of new infections
We are putting in place enhanced measures of surveillance, infection control and management.
We will assign a full-time team of experienced personnel to each hotspot.
This team will include epidemiologists, family practitioners, nurses, community health workers, public health experts and emergency medical services, to be supported by Cuban experts.
We will link each hotspot to testing services, isolation facilities, quarantine facilities, treatment, hospital beds and contact tracing.
Should it be necessary, any part of the country could be returned to alert levels 4 or 5 if the spread of infection is not contained despite our interventions and there is a risk of our health facilities being overwhelmed.
In time, however, through our efforts, it will be possible to place areas where infections are low on levels 2 or 1.
The implementation of alert level 3 from the beginning of June will involve the return to operation of most sectors of the economy, subject to observance of strict health protocols and social distancing rules.
The opening of the economy and other activities means that more public servants will be called back to work.
This will be done in accordance with provisions of the Occupational Health and Safety Act and as guided by the Department of Public Service and Administration working together with all other departments in government.
We appreciate the work that continues to be done by public servants especially those in the front line in the fight against COVID-19.
The safety of all workers, including public servants, is a matter of concern to us.
We will continue to make all efforts for the adequate provision of personal protection equipment to ensure safety for everyone while at work.
Our priority is to reduce the opportunities for the transmission of the virus and create a safe environment for everyone.
We are therefore asking that those who do not need to go to work or to an educational institution continue to stay at home.
People will also be able to leave their homes to buy goods or obtain services including medical care.
People will also be able to exercise at any time during the day, provided this is not done in groups.
The curfew on the movement of people will be lifted.
Alcohol may be sold for home consumption only under strict conditions, on specified days and for limited hours.
Announcements in this regard will be made once we have concluded discussions with the sector on the various conditions.
The sale of tobacco products will remain prohibited in alert level 3 due to the health risks associated with smoking.
All gatherings will remain prohibited, except for funerals with no more than 50 people or meetings in the workplace for work purposes.
Any place open to the public where cultural, sporting, entertainment, recreational, exhibitional, organisational or similar activities may take place will remain closed.
We have had fruitful discussions with leaders of the interfaith religious community on their proposals for the partial opening of spiritual worship and counselling services subject to certain norms and standards.
We have all agreed to have further discussions on this issue and are confident we will find a workable solution.
We wish our Muslim compatriots well for Eid.
They have all gone through a period of sacrifice, which should ordinarily be followed by a celebration.
We wish to thank them for making the necessary adjustments to this celebration as
we continue to fight this pandemic together.
In opening up the economy, we will rely on social compacts with all key role players to address the key risk factors at the workplace and in the interface between employees and the public.
We will therefore be finalising a number of sector protocols and will require every company to develop a workplace plan before they re-open.
According to these plans, companies will need to put in place sanitary and social distancing measures and facilities; they will need to screen workers on arrival each day, quarantine those who may be infected and make arrangements for them to be tested.
They also need to assist with contact tracing if employees test positive.
Because of their vulnerability, all staff who are older than 60 years of age and those who suffer from underlying conditions such as heart disease, diabetes, chronic respiratory disease and cancer should ideally stay at home.
Employees who can work from home should be allowed to do so.
Subject to these measures, all manufacturing, mining, construction, financial services, professional and business services, information technology, communications, government services and media services, will commence full reopening from 1 June.
Appropriate restart and phasing in arrangements will need to be put in place for every workplace.
Wholesale and retail trade will be fully opened, including stores, spaza shops and informal traders. E-commerce will continue to remain open.
Other sectors that opened previously, such as agriculture and forestry, utilities, medical services, food production and manufacture of hygiene products, will remain fully opened.
To ensure that we maintain social distancing, certain high-risk economic activities will remain prohibited. These include:
Restaurants, bars and taverns, except for delivery or collection of food. Accommodation and domestic air travel, except for business travel, which will be phased in on dates to be announced.
Conferences, events, entertainment and sporting activities. Personal care services, including hairdressing and beauty services.
The return to work will be phased in so that the workplace can be made coronavirus- ready. It must be done in a manner that avoids and reduces risk of infection.
We have held discussions with the tourism, hotel and restaurant industry regarding the challenges and hardships these sectors are experiencing.
They have made several proposals, regarding the measures they intend to put in place when their sectors are opened. We are giving consideration to the proposals.
There are many companies that have gone beyond what is required by regulation to support the coronavirus response, including those who already provide screening, testing and even isolation facilities for their employees.
We will be discussing with larger employers how they can make quarantine facilities available for their workers.
We applaud those companies that have contributed to the Solidarity Fund and in other ways to our response. These include companies like Volkswagen, which is building a field hospital in an unused factory in Nelson Mandela Bay that can accommodate 4,000 beds.
One of the greatest challenges we will face with the move to level 3 – which will enable the return to work of up to 8 million people – will be the increased risk of transmission in public transport.
We need to have a partnership between commuters, taxi and bus operators, business and government to keep our people safe.
Commuters will always need to wear masks, to wash their hands before and after they have travelled and avoid touching their faces with unwashed hands.
Commuters will also need to keep a safe distance from other commuters.
Taxi and bus operators need to observe the regulations to be announced by the Minister of Transport, including ensuring that their vehicles are regularly sanitised.
A number of businesses have advised us that they are looking at how they can reduce congestion on public transport, including through staggering working hours and providing transport for employees.
Our national borders will remain closed except for the transport of goods and repatriation of nationals.
Another difficult challenge that we had to confront is the reopening of schools.
Our priority is the health and well-being of learners, students, educators and workers in these institutions.
We are also concerned about the growth and development of our children and that an entire generation of learners should not be permanently disadvantaged by this pandemic.
We are therefore taking a cautious and phased approach to the re-opening of schools, guided by medical advice and in consultation with all stakeholders.
We will be resuming classes for grades 7 and 12 learners from 1 June.
Strict infection control measures and, where necessary, additional water and sanitation infrastructure are being put in place to enable social distancing, regular hand washing and learner safety.
Measures are also being put in place to ensure safety as children access the school nutrition programme and learner transport.
The school calendar will be revised, and the curriculum trimmed so that we can still recover the 2020 school year.
It is understandable that there is some concern about the re-opening of schools, and I must stress that no parent will be forced to send their child to school if they are worried about safety.
But if we all work together, if we diligently follow all the precautions and protocols, we will be able to keep our schools safe.
We are also taking a phased approach to the resumption of learning at institutions of higher learning.
From 1 June, all public universities are expected to implement remote teaching and learning strategies to ensure that all students are given a fair opportunity to complete the 2020 academic year.
With the start of alert level 3, no more than a third of the student population will be allowed to return to campuses on condition that they can be safely accommodated.
Institutions will open up further as the coronavirus alert level changes.
As we mobilise our health resources to meet the expected surge of coronavirus cases, we must make sure that we do not create the space for the emergence of other health crises.
Routine health services should therefore be fully opened and continue to provide services with attention to childhood immunisation, contraceptive services, antenatal care, diagnosis and treatment of tuberculosis and HIV, management of chronic diseases and support for survivors of gender-based violence.
We need to consistently affirm that the rights of all people to life and dignity stands at the centre of our response to the coronavirus, and that we must stand firm against any actions that infringe on these and other basic human rights.
Fellow South Africans,
We have witnessed the courage of those who have continued to work throughout the nation-wide lockdown, caring for those who are sick, providing food and basic services, working to keep our country going under difficult conditions.
The burden of the lockdown has been most severe for those least able to bear it.
Now it is time for most of us to return to work and to resume parts of our lives that have been on hold since the lockdown began.
However, I want to emphasise that the easing of some restrictions does not mean that the threat posed by the coronavirus has passed or that our fight against the disease is over.
In fact, the risk of a massive increase in infections is now greater than it has been since the start of the outbreak in our country.
Now is the time when we must intensify our efforts and deepen our cooperation.
Now, we look once again to you, to your actions and to your sense of responsibility.
We look to you to uphold the sanctity of life and the dignity of all people.
We look to you to protect the weakest and most vulnerable among us.
We look to you to demonstrate the solidarity and compassion that has characterised the response of the South African people to this crisis.
In meeting this grave challenge, we will move ahead as one people, united in action, and determined that we will surely overcome.
At this time, more than any other, we are reminded of the words of Madiba, when he said: “It is now in your hands.”
May God bless South Africa and protect its people.
I thank you.
Introducing SEIFSA FREE WEBINAR WEDNESDAYS
Join us every Wednesday from 20 May till 1 July 2020 as SEIFSA presents its experts to talk to you about doing business in the new reality of COVID 19 and Lockdowns.
The first three zoom webinars will focus on the following:
20 May
1. IMPLEMENTING RETRENCHMENTS / LAY-OFFS AND SHORT-TIME IN A COVID-19 AND LOCKDOWN SCENARIO
- Can you? Can’t You?
- Advantages
- Disadvantages
27 May
2. REDUCING SALARIES AND/OR WAGES IN A COVID 19 ENVIRONMENT
- Can you? Can’t You?
- Is it a negotiation or a consultation?
- What about employees covered by the MEIBC and the Main Agreement?
3 June
3. MANAGING ABSENTEESISM IN A COVID/LOCKDOWN REALITY
- Paid Leave
- Sick Leave
- Special Leave
- Family Responsibility
- What applies? When? And How?
Lucio Trentini
Operations Director
Louwresse Specht
Interim Industrial Relations & Legal Services Executive
Michael Lavender
Industrial Relations Manager
DTIC COVID-19 Export Impact Survey: Wave 2
The Department of Trade, Industry & Competition is conducting a COVID0-19 Export Impact Survey to identify emerging challenges faced by exporters as a result of the COVID-19 pandemic, policy responses to the pandemic, and the subsequent economic slowdown. The questionnaire consists of five sections, and should take less than fifteen minutes to complete. All responses to the questionnaire will be kept anonymous, and reporting will only be provided on the summary results of all respondents.
This is the second wave of the survey conducted since the start of the COVID-19 pandemic, and serves as an opportunity for firms to provide feedback on operations under Level 4 regulations.
The survey may be accessed at https://www.surveymonkey.com/r/dticExporterSurvey
COVID-19 LOAN GUARANTEE SCHEME OPENS
The Covid-19 loan guarantee scheme announced by President Ramaphosa in April will operate from today, 12 May 2020. The initial set of participating banks (Absa, First National Bank, Investec, Mercantile Bank, Nedbank and Standard Bank) are ready to accept loan applications from distressed businesses which bank with them.
The activation of the loan guarantee scheme follows the finalisation of legal details by National Treasury, the South African Reserve Bank and the Banking Association South Africa.
The loan guarantee scheme is an initiative to provide loans, guaranteed by government, to businesses with an annual turnover of less than R300 million to meet some of their operational expenses. Funds borrowed through this scheme can be used for operational expenses such as salaries, rent and lease agreements, contracts with suppliers, etc.
Government and commercial banks are sharing the risks of these loans. Initially, the National Treasury has provided a guarantee of R100 billion to this scheme, with the option to increase the guarantee to R200 billion if necessary and if the scheme is deemed successful.
More details on the scheme can be found in a Frequently Asked Questions guide posted at Loan Guarantee Scheme Q&A or https://www.banking.org.za/
Further queries can also be directed to the individual banks, which are administering the scheme.
GUIDANCE REGARDING THE RESPONSE TO THE IMPACT OF COVID19 CORONAVIRUS PANDEMIC ON THE IMPLEMENTATION OF EMPLOYMENT EQUITY IN THE LABOUR MARKET
The Commission for Employment Equity (CEE) as per Section 30 of the Employment Equity Act of 1998 (the EEA), is mandated to advise the Minister on codes of good practice, regulations, policy and any other matter concerning the EEA.
The CEE recognises the catastrophic impact of the COVID19 on the various sectors of the economy, including the threat posed by the pandemic on the economic growth, job creation and retention. The CEE acknowledges the fact that it will be business unusual as all organisations will be exploring various COVID19 Response and Recovery Plans with regard to Business Continuity.
Therefore, in the midst of all the organisational configuration processes, the CEE concedes that it would be inevitable that the achievement of the initially planned annual employment equity targets would not be left unscathed.
In response to the inevitable consequences of the COVID19 on organisations and in particular, on the implementation of employment equity in the various workplaces, the CEE request all designated employers to take into account the following guidelines:
- All employers are reminded that they are still legally obligated to comply with all the provisions of all employment laws during their organisational restructuring/ configuration processes to ensure that there is no unfair treatment and unfair discrimination policies and practices against all employees.
LOCKDOWN ALERT LEVEL 4: WORKPLACE READINESS TOOLS
A number of workplace readiness tools have been developed to help businesses that are reopening to put in place the necessary occupational health and safety provisions to enable a safe return to work, herewith some additional tools:
- Workplace readiness practice note – provides minimum practice guidelines for all employers to resume operations safely and minimise the risk of COVID-19 transmission to workers.
- CEO declaration template – confirmation that the employer has completed the required procedures and planning processes to safely resume operations at level 4 lockdown.
- Risk assessment and management tool – a planning tool to aid a company to assess their COVID-19 related risks (tab 1) and then put in place plans and controls to mitigate those risks (tab 2). Note that this should be done with the workplace occupational health and safety committee, if applicable.
- Risk adjusted strategy regulations – note in particular page 15 and Annexure E that have been included in the practice note and CEO declaration.
These documents seek to incorporate all the relevant official requirements. If a business has already assessed its occupational health and safety risks and put in place a plan, the business need not use these tools.
The material is provided for guidance in the absence of the business having a process and plan in place; or as an additional reference to ensure that all important risk factors and control measures are considered. It is important to remind to all businesses to keep their occupational health and safety records, and risk management approach available in the event that it is required for reporting or compliance purposes.
These documents are available for download on: https://www.return2work.co.za together with official reference documents and resources.
We trust this will help your business plan for a safe return to work.
ALERT LEVEL 4 REGULATIONS - WORKPLACE PLANS, SAFETY MEASURES, EMPLOYEES WHO ARE 60 OR OLDER AND STAFF WITH COMORBIDITIES
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.
Compliance Officer
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.
Workplace Plan
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.
Safety 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
PLEASE HEED MANDATORY HEALTH REGULATIONS FOR LEVEL FOUR
Please be meticulous in your implementation of the Level 4 restrictions that came to effect on 1 May 2020, as South Africa enters a new phase of its response to COVID-19 in terms of the new regulations promulgated under the Disaster Management Act, 2002. The Regulations repeal and replace the previous lockdown regulations of 18 March 2020, as amended.
The Regulations provide a more detailed framework for businesses to know whether and the extent to which they are permitted to operate if they decide to return to work.
It is vital for employers to pay attention to health protocols and hygiene restrictions, that for the first time, are subject to a degree of standardization across sectors.
The promulgation of the Regulations follow the President’s announcement on 23 April 2020 that the COVID-19 response would be regulated in accordance with Five Alert Levels, with the most severe restrictions applicable during Alert Level 5, and the least during Alert Level 1. While the progression from Level 5 to Level 1 will not necessarily be linear and different levels may apply to different areas of the country at any given time, the nationwide movement to Level 4 on 1 May provides some respite for certain businesses.
The general position under Alert Level 4 remains that every person is confined to his or her place of residence subject to exceptions listed in a table of permitted industries and activities. Thus, the movement of persons is still strictly regulated and constrained to performing or obtaining permitted services or purchasing essential goods, as well as the travel required for these purposes.
MANDATORY HEALTH INTERVENTIONS
The major addition to the new Regulations is clarification as to what employers are required to do if they intend to and are permitted to reopen. Regulation 16 provides that all businesses must develop a plan for phased reopening which meets the standards of health protocols and required physical distancing measures. The nature of the plan depends on the size of the business. Small businesses will probably not require written plans. Medium and large businesses must take specific account of the factors listed under items 1-6 of Annexure E to the Regulations.
Each business must designate a COVID-19 compliance officer to oversee implementation of the workplace plan and adherence to the applicable health protocols. These include mandatory physical distancing measures, such as enabling remote working, restricting face-to-face meetings, ensuring that there is adequate space between employees, and taking special measures for employees over the age of 60 and other employees with known or disclosed health conditions which place them at a higher risk if they are infected with COVID-19.
All businesses are expected provide hand sanitiser which must be accessible to staff and customers.
Businesses need to further note that everyone will be required to wear a mask, or another item which covers their nose and mouth, on public transport, when they enter premises, and whenever they are in a public place. Where an employee has contact with the general public as part of their duties at work, it is the employer’s obligation to ensure that they are provided with a suitable mask.