Authors: Phetheni Nkuna – Director & Jordyne Löser – Associate
During his national address on 23 April 2020, President Ramaphosa acknowledged that “our people need to eat. They need to earn a living. Companies need to be able to produce and to trade, they need to generate revenue and keep their employees in employment.” This was followed by an announcement that South Africa would enter lockdown level 4 effective from 1 May 2020, allowing certain sectors of the economy to operate, albeit under strict regulations.
On 29 April 2020, the Department of Co-operative Governance and Traditional Affairs issued revised Regulations that would apply post 30 April 2020. Briefly, every person is confined to his/her place of residence. A person may only leave their place of residence to perform an essential or permitted service allowed in level 4, to go to work where a permit has been issued, buy permitted goods, obtain services that are allowed to operate, move children as allowed or walk, run or cycle under strict restrictions. A daily curfew will apply between 20h00 and 05h00, except where a person has been granted a permit to perform an essential service or is attending to a security or medical emergency.
Additional key aspects of the Regulations are the following:
Movement between provinces, metropolitan areas and districts is prohibited except for workers who have a permit to perform an essential or permitted service who have to commute to and from work on a daily basis, the attendance at a funeral, the transportation of mortal remains and for learners who have to commute to and from school or higher education institutions on a daily basis (this being when those institutions are permitted to operate).
Any person who was not at their place of residence, or work before the lockdown period and who could not travel between provinces, metropolitan and district areas during the lockdown, will be permitted on a once-off-basis to return to their place of residence or work and will be required to stay in such place until the end of lockdown level 4.
No person who has been confirmed as having contracted COVID-19, or who is suspected of having contracted COVID-19 , or who has been in contact with a person who is a carrier of COVID-19 may refuse to: (1) submit to a medical examination, including but not limited to, the taking of any bodily sample which is authorised in law; (2) be admitted to a health establishment or a quarantine or isolation site; or (3) submit to mandatory prophylaxis, treatment, isolation or quarantine, in order to prevent transmission.
All borders of the Republic remain closed during the period of level 4, except for designated ports of entry and for the transportation of fuel, cargo and goods during the level 4 period.
All gatherings are banned except for funerals, when at a workplace or when buying or obtaining goods and services as allowed at level 4.
Any place or premises normally open to the pubic where religious, cultural, sporting, entertainment, recreational, exhibitional, organisational or similar activities may take place, is closed.
Persons performing essential services or permitted services, must be duly designated in writing by the head of an institution, or a person designated by the head of the institution, on a form that corresponds with Form 2 of the Regulations. This is similar to what was required for essential services under lockdown level 5.
Any person who intentionally misrepresents that he/she or any other person is infected with COVID-19, or who publishes any statement through any medium (including social media) with the intent to deceive an person about COVID-19, COVID-19 infection status of any person, or any measure taken by Government to address COVID-19, is guilty of an offence and on conviction liable to a fine or imprisonment for a period not exceeding 6 months, or to both.
Any person who intentionally exposes another person to COVID-19 may be prosecuted of an offence, including assault, attempted murder or murder.
Keeping in line with the Regulations, Minister Nxesi on 29 April 2020 issued a Directive concerning occupational health and safety to apply in workplaces as some businesses are expected to resume operations within the level 4 restrictions as of 1 May 2020. The general principle is that where possible, employees must work from home. However, where physical presence at workplaces is necessary, we highlight the fundamental measures that employers must pay attention to as we enter lockdown level 4:
Employers are required to conduct a risk assessment of their various workplaces.
Where an employer employs in excess of 500 employees, the employer is required to submit a record of its risk assessment together with a written policy concerning the protection of the health and safety of its employees. The report is to be submitted to its heath and safety committee and the Department of Employment and Labour.
Employers must notify employees of the contents of the Directive and how they intend to implement it.
Employers must notify employees that if they are sick or have COVID-19 related symptoms, they must not report for duty and must take paid sick leave.
Employers must, as far as practicable, minimize the number of workers at the workplace at any given time through rotation, staggered working hours, shift systems, remote working arrangements or similar measures in order to achieve social distancing.
Employers have an obligation to inform the Departments of Health, and Employment and Labour if an employee is diagnosed with COVID-19.
The Directive also prescribes social distancing measures applicable to workplaces. These are:
Social distancing must be observed throughout the workplace and in common areas through queue control, dividing employees into groups or staggering during breaks or lunch.
Reduce number of workers present in the workplace and minimize contact between workers.
Ensure a minimum of 1.5 meters (or longer if possible) between employees whilst working at their workstations.
If 1.5 meter is not possible, employers must install physical barriers or supply employees with appropriate PPE based on a risk assessment of the workplace.
Concerning health and safety, the following measures will apply: Symptom screening of every worker when they report for duty. COVID-19 symptoms include fever, cough, sore throat, redness of eyes and shortness of breath or breathing difficulties. Employees must immediately report if they experience any of these symptoms.
Employers must require employees to immediately report if they suffer from body ache, loss of smell or taste, nausea, vomiting, diarrhea, fatigue, weakness or tiredness.
When conducting screening, medical surveillance and testing, employers must comply with the Health Department’s guidelines.
Employees who experience or report any of the above symptoms must be prohibited from entering the workplace. If already entered, they must be isolated, furnished with a FFP1 surgical mask, and transported either to be self-isolated or for medical examination or testing.
Employers must assess the risk of transmission, disinfect the workplace and refer any workers who may have been exposed for screening.
Employees referred to a testing site will be granted paid sick leave. If this is exhausted, they can apply for the COVID-19 TERS illness benefit.
Employers have an obligation to ensure the elimination of discrimination on the basis of having tested positive for COVID-19.
·An employee who has tested positive and subsequently been isolated may be allowed to return to work only if they have undergone medical evaluation which confirms they are negative, the employer ensures strict adherence to personal hygiene, wearing of masks, social distancing and cough etiquette.
Where there is evidence of an employee having contracted COVID-19 on the basis of occupational exposure, the employer must lodge a compensation claim in terms of COIDA.
Concerning hand sanitizers and hand disinfectants, the Directive provides the following:
Hand sanitizers must have alcohol content of at least 70%. Employers must supply all employees who work away from the workplace (other than home) with hand sanitizer and ensure that there is hand sanitizer at its workplaces for use by employees and other persons.
In addition, employers must disinfect all work surfaces and equipment before work begins, and regularly during working hours, and after work. Toilets, common areas, door handles and shared electronic equipment must be regularly disinfected.
Employers must disable biometric systems or make them COVID-19 proof.
Employers must ensure that there are adequate facilities for hand washing with soap and clean water and provide paper towels for hand drying (no fabric towels).
Employers will be required to provide employees, at no charge, with at least two cloth masks for use whilst at work (mandatory at all times) and commuting to and from work. Wet or soiled masks must be replaced. The employer may arrange for the masks to be washed, dried and ironed. Where an employer’s risk assessment necessitates the wearing of PPE, these must be provided.
The Directive contains measures applicable to workplaces to which the public has access:
Social distancing of 1,5 meters will apply between employees and members of the public.
Install physical barriers or provide employees with face shields or visors.
If appropriate, employers may screen members of the public entering the workplace for COVID-19 related symptoms.
If appropriate, display notices advising of precautions members of the public are required to observe when entering the workplace.
Require members of the public to wear masks inside the workplace.
Employers must ensure natural or mechanical ventilation of the workplace to reduce the SARS-CoV-2 viral load. Where reasonably practicable, they should install an effective local extraction ventilation system with high-efficiency particulate air HEPA filters. Filters must be regularly cleaned, maintained and replaced.
Companies with fewer than 10 employees have less onerous measures to implement. These are:
Employees must be at least 1.5 meters apart or must have physical barriers between them.
Employees who present with COVID-19 symptoms must not be permitted to work.
Employers must contact the COVID-19 hotline should they require assistance.
Employees must have cloth masks.
Every employee must have access to hand sanitizer, soap and running water and disinfectants to sanitize workstations.
Employees must wash with soap and sanitize their hands regularly.
Employees must disinfect their workstations regularly.
Employers must implement any other measures indicated by a risk assessment.
An inspector designated in terms of section 28 of the Occupational Health and Safety Act may monitor compliance with the Directive. In the event of contravention of the provisions of the Directive, offences and penalties under section 38 of the Act will be imposed. Penalties include a fine not exceeding R50 000 or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment, or a fine not exceeding R100 000 or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment where the employer or any person would have been guilty of the offence of culpable homicide. In addition, an order compelling compliance may be issued.
A Chief Inspector appointed in terms of section 28 of the OHSA may facilitate development of sector specific guidelines to supplement the Directive.
A COVID-ready Workplace Plan must be developed prior to the reopening of an enterprise employing persons or serving the public. For small business the 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 large number of persons at the workplace.
In respect of companies who provide the essential or permitted services, these companies are to obtain a certificate authorising them to provide such services during the lockdown level 4 by registering with the Companies and Intellectual Properties Commission (“CIPC”), which registration can be done online at bizportal.gov.za.
It would be advisable for employers to implement a COVID-19 handbook, if employers have not already done so, to address these measures and the obligations required from both an employer and employee perspective to ensure the risk of the spread of COVID-19 is limited.
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