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26 May 2020
BY Nils Braatvedt AND Shivani Moodley

South Africa: alert level 4 – back to work with strings attached

As part of the risk-adjusted strategy implemented by the South African Government, various organisations and their employees are being phased back into work to keep the economy active, while trying to limit the risk of infection. How operations are to be conducted will depend on the “alert level” that the country is in, which ranges from 5 (high degree of restrictions) to 1 (low degree of restrictions). There are a few strings attached to this and it will not be business as usual.

The phasing-in process is regulated by the Regulations published in terms of the Disaster Management Act, 2002. The Regulations contain general measures to contain the spread of the Coronavirus (COVID-19) during the national state of disaster and specific measures that an employer must comply with during alert level 4 – the current alert level.

In this article, we look at some of the key obligations arising from the Regulations from an employment perspective. However, employers should have careful consideration for the Regulations in the context of their specific operations to ensure proper compliance.

Social distancing

As a general requirement during the national state of disaster (regardless of the alert level), all employers must adopt measures to promote the physical distancing of employees in the workplace. This includes enabling employees to work from home or minimising the need for employees to be physically present at the workplace. Where employees need to be at work to perform their duties, and subject to being permitted to do so in terms of the Regulations, the employer is required to make provision for adequate space between employees and minimise the need for face-to-face interactions. Special measures should be made for employees with known or disclosed health issues or comorbidities, or with any condition that can place employees at a higher risk of complications or death in the event of contracting the virus.

Face masks

In terms of the Regulations, an employer must also provide every employee who may come into direct contact with members of the public as part of their duties with a cloth face mask, homemade item or another appropriate item to cover their nose and mouth while in public. There is a discrepancy between what is required in the Regulations and what is required in terms of the Directive issued by the Minister of Employment and Labour regarding Health and Safety in the Workplace regarding face masks. In this regard, the Directive requires that every employer must provide each of its employees, free of charge, with a minimum of two cloth masks, which comply with the requirement set out in the Guidelines issued by the Department of Trade, Industry and Competition, for the employee to wear while at work and while commuting to and from work. Every employer must also require any other worker to wear masks in the workplace.

The Directive vs the Regulations

It could be argued that a more strenuous obligation is being imposed on an employer in terms of the Directive than in terms of the Regulations. In this regard, the question arises as to whether or not the Minister of Employment and Labour is empowered to establish more onerous obligations. It is at least arguable that Regulation 4(10) empowers the minister to do so. As such, employers would be well-advised to implement the provisions of the Directive, insofar as they may be more onerous than the Regulations.

COVID-ready Workplace Plan

During alert level four, all industries, businesses and entities in the private and in the public sector, that are permitted to operate must develop a plan (known as a “COVID-ready Workplace Plan”) for the phased-in return of their employees to the workplace, prior to reopening the workplace for business. The plan must correspond with the format specified in the Regulations and must contain the following information:

  1. which employees are permitted to work;
  2. what the plans for the phased-in return of their employees to the workplace are;
  3. what health protocols are in place to protect employees from COVID-19; and
  4. the details of the COVID-19 compliance officer (who must be appointed to oversee the implementation of the plan and ensure adherence to the standards of hygiene and health protocols relating to COVID-19 at the workplace).
  5. The Regulations require an employer to develop measures to ensure that the workplace meets the standards of health protocols and provides adequate space for employees and social distancing measures for the public and service providers. This should be implemented through the COVID-ready Workplace Plan. However, in establishing such COVID-ready Workplace Plans, employers must be mindful of their obligations that arise out of the Mining Health and Safety Act, 1996, the Occupational Health and Safety Act, 1993 and their general duty to provide a safe working environment. The COVID-ready Workplace Plan does not replace any other health and safety plan that the employer is required to prepare in terms of health and safety legislation.

For small businesses, the COVID-ready Workplace Plan can be basic, reflecting the size of the business, while for medium and larger businesses, a more detailed written plan should be developed given the larger numbers of persons at the workplace and the increased risk of transmission of COVID-19. The Regulations set out the various aspects that must be addressed in the plan.

It is important that employers take active measures that are reasonably practicable so as to ensure that the workplace is safe for employees and members of the public. This ensures that the employer’s legal obligations are met and that the transmission of COVID19 is curbed.

Reviewed by Lauren Salt, an Executive in ENSafrica’s Employment department.

Nils Braatvedt

Employment | Associate

+27 82 564 0949

Shivani Moodley

Employment | Associate

+27 82 560 4064