Up Again South Africa: People

The South African government developed a five-level approach for a phased reopening of the economy, and implemented measures to curb the transmission of COVID-19. Accordingly, certain businesses (other than those providing essential services) are permitted to reopen and operate, depending on the alert level. South Africa is currently at alert level 4, and is due to move to alert level 3 from 1 June 2020. We will provide more details when once available.

Employment

1. What options do employers have and/or what are you seeing in terms of re-opening the workplace e.g. phased returns, rotating shifts, staggered working hours, etc.?

On 23 March 2020, the president of South Africa announced a nationwide lockdown with effect from 26 March 2020, which ended on 1 May. During the lockdown, only businesses that provided essential services (e.g. medical/health practitioners, grocery stories, fire services and municipal services) were allowed to operate.

The South African government developed a five-level approach for a phased reopening of the economy, and implemented measures to curb the transmission of COVID-19. Accordingly, certain businesses (other than those that provide essential services) are permitted to reopen and operate depending on the relevant alert level. South Africa is currently at alert level 4 (which may change from 1 June, and is due to move to alert level 3 from 1 June 2020. We will provide more details when available.

In terms of the phased reopening of the economy, restrictions have been imposed to regulate the number of employees allowed to return to work by providing only a certain percentage (varying by sector) of employees may return to the workplace.

The Regulations issued under section 27(2) of the Disaster Management Act, 2002 and the COVID-19 Direction on Health and Safety in the Workplace issued by the Department of Employment and Labour (Directive) set out specific measures employers are required to take to protect their employees from COVID-19.

The Directive provides an employer must, as far as reasonably practicable, minimise the number of employees at the workplace at any given time through rotation, staggered working hours, shift systems, remote-working arrangements or similar measures.

All businesses permitted to operate must appoint a COVID-19 compliance officer and must develop a workplace plan for the phased return of employees to the workplace before reopening the workplace. The workplace plan must set out (among other things):

  • which employees are permitted to return to work;
  • healthcare protocols; and
  • the contact details of the COVID-19 compliance officer.

The size of the business will determine the level of detail required, so smaller businesses can have a basic plan, whereas large and medium-sized businesses need more detailed plan, in accordance with the requirements in Annexure E of the Regulations.

Employers are encouraged to allow employees to work from home where reasonably possible. Special measures should also be adopted for employees who are over 60 or have underlying health conditions making them more vulnerable to COVID-19. There is also a requirement to provide employees with cloth masks, make hand sanitiser available at the entrance to the premises, promote social distancing by ensuring a distance of at least 1.5 metres between employees, and screen employees for COVID-19 symptoms.

2. Does an employer have to give notice to employees to return to the workplace?

No. However, employees cannot travel to work unless issued with a permit by the employer in the form prescribed in the Regulations. There is a requirement for employers to create awareness of COVID-19 and inform the employees of the relevant health and safety requirements in the Directive. The employer should also communicate to the employees the health and safety measures it has implemented and that employees are required to disclose they have COVID-19 symptoms.

3. Is an employer obliged to consult with employees/representatives about the return to work process?

No. There is only a requirement to consult with employees if the employer is contemplating the retrenchment of employees or where the company is proposing a change to the employee's terms and conditions.

For example, consultation would be needed where there is a change in contractual working hours or where the employee will be required to work reduced hours with a reduction in salary as a result of a shift system or rotational work.

4. Are there any requirements or recommendations for employees to wear or employers to provide masks or other protective equipment in the workplace? 

Yes. The Directive requires every employer to provide each of its employees, free of charge, with a minimum of two cloth masks to wear at work and while travelling to and from work.

Employers are required to regularly visit the websites of the National Department of Health, National Institute of Communicable Diseases and the National Institute for Occupational Health to check if additional personal protective equipment (PPE) is required or recommended, given the nature of the workplace and the employees' duties. Certain sectors of the economy may issue sector-specific guidelines with additional requirements for PPE.

5. When can business travel resume and what are the key considerations for employers?

All international travel and any movement of people between provinces, metropolitan areas and districts is prohibited except for limited circumstances (e.g. where workers who have a permit to perform an essential or permitted service need to commute to work on a daily basis). At this stage, the government anticipates that travel between provinces with the same risk profile will resume only when South Africa moves to alert level 2, and all other local and international travel is anticipated to resume only at alert level 1.

6. If schools remain closed, can working parents continue to work from home?

The president has urged all those who can work from home to continue to do so. Such employees should continue to do so, whether or not they have childcare responsibilities. If employees cannot work from home and need to stay at home to look after children, then the employer can require those employees to take annual leave.