An update for employers as South Africa moves into Alert Level 3

By:

On 1 June 2020, South Africa shall move from Alert Level 4 of the National Lockdown to Alert Level 3 in line with the risk adjusted strategy adopted by the South African government to manage the COVID-19 pandemic. Additional Regulations have been issued under the Disaster Management Act, 2002, relating to Alert Level 3 under Government Gazette no 608 (Regulations) that supplement the current Regulations issued under the Disaster Management Act, 2002, relating to Alert Level 4 under Government Gazette no 480.

Which businesses may operate under Alert Level 3?

In terms of the Regulations, in an effort to re-open the economy all businesses are now permitted to operate except for a few listed exceptions. All employees who are able to work from home must do so. However, persons will be permitted to perform any type of work outside the home and to travel to and from work and for work purposes provided that the type of work to be performed does not fall under one of the exceptions and subject to strict compliance with health protocols and social distancing measures. In addition, the employer must adopt a phased-in return to work in a manner that avoids and reduces the risks of COVID-19 and in order to put in place measures to make the workplace COVID-19 ready and manage the return of employees from other provinces, metropolitan areas and districts. The employer will accordingly be required to implement and maintain appropriate health and safety measures.

Which businesses may not operate under Alert Level 3?

The specific economic exclusions are set out in Table 2 of the Regulations. These exclusions include:

  • consumption of food and beverages at or in a place of sale and the on-site consumption of liquor;
  • short term home-sharing/letting/leasing/rental for leisure purposes;
  • domestic passenger air travel for leisure purposes, until otherwise permitted by way of directions and passenger ships for leisure purposes;
  • conferences and events, including sporting events, except as permitted by the Regulations;
  • personal care services;
  • exclusions relating to public transport services and education services that are set out in the relevant directions; and
  • tourist attractions, casinos and entertainment activities.

Permits for the performance of services permitted under Alert Level 3

As set out above, the Regulations provide that a person is permitted to leave his or her place of residence to perform any service, as permitted under Alert Level 3 and to travel to and from work and for work purposes. Accordingly, the Regulations do not expressly provide that a business must issue a permit for the performance of any services permitted under Alert Level 3, as it did under Regulation 16(1)(b) of the Regulations applicable for Alert Level 4. However, permits are required in respect of the movement of persons between provinces, metropolitan areas and districts and hotspots. Employees moving between those areas when travelling to and from work or travelling in the course of carrying out work would need to be issued with a permit by the employer which corresponds with Form 2 of Annexure A to the Regulations, being the same form of the permit which was issued to employees under Alert Level 4 for essential or permitted services. An employer would therefore need to make an assessment regarding which of its employees will be required to move between provinces, metropolitan areas and districts and hotspots and will therefore require a permit to do so. The hotspots are subject to change but are currently: Tshwane, Johannesburg, Ekurhuleni, Ethekwini, Nelson Mandela Bay, Buffalo City, West Coast, Overberg and Cape Winelands district municipality, Chris Hani district in the Eastern Cape, and iLembe district in KwaZulu-Natal.

Notwithstanding that the Regulations do not appear to envisage issuing permits to employees who will not be crossing provinces, metropolitan areas and districts and hotspots, there is some confusion on this as government has proposed during media briefings that the Regulations pertaining to Alert Level 3 still include “that letter that the employers give out to workers”. Until further guidance and clarification is given regarding the permit requirement, the prudent approach would be for businesses permitted to operate under Alert Level 3 to ensure that all employees are issued with permits that correspond with Form 2 of Annexure A of the Regulations.

Health and safety measures

The Regulations set out certain health and safety measures but expressly provide that these health and safety measures are in addition to the health protocols and social distancing measures set out in certain directions including the occupational health and safety directions issued. Employers will therefore be required to continue to comply with the COVID-19 Direction on Health and Safety in the Workplace, as may be amended (Directive) that was issued by the Department of Employment and Labour when South Africa moved into Alert Level 4 as well as any sector-specific guidelines and other health protocols and social distancing measures in applicable directions. Please refer to our previous Newsflash setting out a summary of this Directive. As such, the health and safety and business operational measures required to be implemented during Alert Level 4 as per the applicable Regulations for Alert Level 4 (Regulations 15-31) will not apply under Alert Level 3, save for those measures that continue to be a requirement under the applicable Regulations for Alert Level 3 (Regulations 32 to 48). Businesses should also note that those general measures required to contain the spread of COVID-19 set out in Regulation 5 shall continue to be applicable throughout the national state of disaster. We understand that the Directive will be amended to include the following:

  • workers who have had close contact involving high risk of transmission with workers diagnosed with COVID-19 will need to be placed in quarantine for 14 days on paid sick leave;
  • there will no longer be a requirement for employers to wash the two cloth masks that they provide to their employees;
  • employees will have the right to refuse to work if they have a reasonable belief that the necessary precautions have not been put in place to prevent the transmission of COVID-19; and
  • employers may not deduct the costs associated with the COVID-19 precautions from employees' wages or require them to pay for such measures.

In addition to those measures indicated above in respect of businesses that shall be permitted to operate under Alert Level 3, the Regulations provide as follows:

  • businesses and institutions must adhere to social distancing and health protocols set out in the Directive and other directions;
  • businesses and institutions with more than 100 employees must, where possible, make provision for minimizing the number of employees at the workplace at any one time through rotation, staggered working hours, shift systems, and remote working arrangements to facilitate social distancing and to limit congestion on public transport;
  • special measures must be put in place for employees who are over 60 years old as well as those employees with comorbidities, which measures may include continuing to work from home;
  • all gatherings are prohibited save a for a few exceptions which include gatherings at a workplace for work purposes;
  • as required during Alert Level 4, industries, businesses and entities in the public and the private sector which are permitted to operate under Alert Level 3 must designate a COVID-19 compliance officer to oversee the implementation of the workplace plan as required in Annexure E of the Regulations and ensure the adherence to the standards of hygiene and health protocols relating to COVID-19 and the workplace. Please refer to our previous Newsflash setting out a summary of Workplace plan requirements and compliance officer duties.

The Regulations also provide that in the construction, manufacturing, business and financial services sectors where there are more than 500 employees, employers must finalize workplace arrangements in respect of the following:

  • providing or arranging transport for employees where possible, or where not possible employers must implement staggered work 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;
  • screening employees daily for symptoms of COVID-19 and referring employees who display symptoms for medical examination and testing, where necessary (all employers should refer to the symptom screening measures set out in the Directive); and
  • submitting data collected during the screening and testing process to the Director-General for Health.

Sector or industry bodies must, in the event of high health risks, develop sector-specific health protocols which must include provisions to limit the spread of COVID-19 in the sector concerned and provide for those circumstances where a business cannot operate staggering working hours or provide transport to its employees. We therefore anticipate that there may be more sector-specific guidelines issued in the future setting out more stringent measures to curb the spread of COVID-19.