Alert Level 3 Regulations: the key takeaways for employers
The much-anticipated Alert Level 3 Lockdown Regulations, issued in terms of section 27(2) of the Disaster Management Act, 2002 were gazetted yesterday, Thursday, 28 May 2020.
Although many restrictions will remain in place when South Africa enters alert level 3 from 1 June 2020, the Regulations undoubtedly introduce a few major changes. This is particularly the case for employers with the resumption of additional industries and the reduction in restrictions in line with the phased reopening of economy.
We discuss some of the key takeaways for employers below.
Movement of persons for work
Under alert level 3, people are allowed to leave their places of residence to (among other things) perform any service permitted under alert level 3, and to travel to and from work. The permitted services “list” has been expanded significantly.
The movement of individuals between provinces, metropolitan areas and districts and hotspots is generally prohibited, but is allowed if it is done in the course of carrying out work responsibilities or performing any service permitted under alert level 3, provided that such a person is in possession of a permit issued by his or her employer which corresponds with Form 2 of Annexure A.
In this regard, the Form 2 permit has not been replaced. It seems that under alert level 3, the only time a Form 2 permit is required is in the event of a person moving between provinces, metropolitan areas, districts and hotspots. It is not clear whether an employee who does not move in accordance with this regulation will require a Form 2 permit. In light of the lack of clarity, employers may want to adopt a cautious approach and those who can issue Form 2 permits to all employees should do so, although this may be a practical impossibility for larger employers. The curfew that was imposed in respect of the movement of persons under alert level 4 has now also been dispensed with under the new regulations.
Public places and premises (mostly) still closed
While most public places will remain closed under alert level 3, the Regulations provide that hotels, lodges, bed and breakfasts, timeshare facilities, resorts and guest houses may open to the extent that they are required by, among others, “persons for work purposes”.
Closure of borders
South Africa’s borders will remain closed during alert level 3, save for a few exceptional ports of entry. For employees whose places of employment are outside South Africa, the Cabinet Member responsible for Home Affairs may allow entry into or exit from the country for reasons including the return of a South African national or permanent resident to his or her place of employment outside South Africa.
Sale, dispensing or transportation of liquor
The sale of liquor at licensed premises or through e-commerce delivery is permitted under alert level 3 from Monday – Thursday, between 09h00 and 17h00.
Operation of the economic and public sector
Under alert level 3, with the exception of specific economic exclusions, most businesses and other institutions in both the private and public sectors may operate – subject to certain social distancing measures that may limit the number of employees in the workplace at any given time.
The economic exclusions, provided in a Table 2 of the Regulations, include the consumption of food and beverages at restaurants and other outlets; on-site consumption of liquor; short-term home rental, domestic passenger air travel, and passenger ships for leisure; conferences and events; personal care services; certain public transport and education services; and tourist attractions, casinos and entertainment activities.
Notably, the Alert Level 3 Regulations still stipulate that all persons who are able to work from home must do so.
Under alert level 3, all employers remain obliged to ensure the health and safety of their employees (and others) in the workplace by strict adherence to the health protocols, social distancing measures, the COVID-19 Occupational Health and Safety Measures In Workplaces COVID-19 (C19 OHS), 2020 Directive (the “OHS Directive”), and relevant labour legislation. In addition, the Alert Level 3 Regulations explicitly require that special measures must be implemented in the workplace to facilitate the safe return of employees who are over 60 or have comorbidities. There was some confusion under alert level 4 as to whether the Workplace Plan template required those over 60 and/or with comorbidities to stay at home. The position has been made clearer under the Alert Level 3 Regulations, read with the Guidance on vulnerable employees and workplace accommodation in relation to COVID-19 (V4: 25 May 2020) issued by the Department of Health, that there are a number of special measures that employers can implement in the workplace. The high watermark of this is that employees over 60 and/or with comorbidities can return to work.
Larger employers have additional obligations. In order to achieve social distancing and limit congestion at the workplace, employers with more than 100 employees must, where possible, minimise the number of employees in the workplace at any given time using measures such as staggered working hours, rotation, shift systems or remote working. Further, construction, manufacturing, business and financial services firms with more than 500 employees must make arrangements that address: the transport of employees to and from work; the staggered return of employees to the workplace to ensure workplace readiness and avoid congestion; the screening of employees daily for symptoms of COVID-19 and testing where necessary; and the submission of screening an testing data to the Director General: Health.
While it appears that larger employers have increased obligations, this does not detract from the fact that all employers, regardless of size, have a general obligation in respect of both Table 2 and the Alert Level 3 Regulations to institute their return to work under very certain circumstances and in compliance with health protocols, social distancing, the OHS Directive and relevant labour legislation.
The Alert Level 3 Regulations also provide that employers that operate under sector or industry-specific bodies may also be required to implement sector-specific health protocols to limit the spread of COVID-19. These bodies are required to develop these protocols in consultation with the Department of Health, where there are high health risks.
The requirement to appoint a compliance officer has survived and has been re-emphasised under alert level 3.
The return and concurrent responsibility
Notable for employers (not subject to the exclusions) is that the Alert Level 3 Regulations provide for the greater movement of their employees and the eventual return to full employee constituency and therefore operational capacity. Importantly, however, this return to work is certainly not a “return to normal”. It is vital that employers carefully plan, implement, and adhere to, all the required health, safety, administrative and operational protocols and measures in their respective workplaces, as well as remain abreast of any detailed directives and sector-specific protocols which may be issued in the near future.
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