New regulations to contain the outbreak of COVID-19 in South Africa were released on 18 March 2020. Many of these regulations will impact employers to varying degrees.
This article focuses on the general employment and health & safety implications of these regulations. There are more specific implications for employers who operate in certain sectors and we deal with such implications under different headings.
At the outset, it is important for employers to note that the enforcement of these regulations rests with enforcement officers. Enforcement officers, under the regulations, are members of the South African Police Services, South African Defence Force and peace officers such as magistrates and justices. Employers must take note that if they default on any aspect of the regulations, they may face certain penalties (which we will discuss below).
General implications for employers
One of the aspects dealt with by the President in his most recent address on COVID-19 relates to a prohibition on gatherings of more than 100 people. There has been much uncertainty around what constitutes a gathering and whether it applies to the workplace. The regulations have clarified the uncertainty to some extent by defining a gathering as -
"any assembly, concourse or procession of more than 100 persons, wholly or partially in an open air or in a building or premises"
Regulation 3 places a clear prohibition on gatherings that meet this definition, even when they take place within a workplace. Employers are therefore advised to take the following into account:
- Workplaces that have more than 100 people on the premises (or at a site) should pay careful attention to the prohibition and avoid any activity that could violate this prohibition.
- Where gatherings, for any reason, of more than 100 people take place in an area of the workplace, such gatherings must be prohibited.
- Employers should inform their employees that gatherings of more than 100 people may not be organised for any reason.
- This prohibition does not set a limit on the number of people who should be permitted to enter the workplace in general. However, where there are large numbers of people who gather or congregate in a particular area (like canteens and turnstiles/entrances), employers must take steps to avoid this for example by requiring employees to queue or congregate in groups of a hundred or less, sufficiently distanced from each other.
If a gathering of more than a hundred people takes place in violation of the regulations,, enforcement officers are allowed to order the dispersion of such a gathering. If this does not work, enforcement officers are allowed to arrest and detain such persons. Any person who convenes a gathering or obstructs an enforcement officer will commit an offence and liable for fine or period of imprisonment not exceeding six months.
Despite the restriction of gatherings, employers are also well advised to consider their current business continuity plans and workplace policies specifically around leave for employees, remote working, hygiene and cleaning practices and a potential temporary closure or shut down of business operations.
Implications for the food, retail and hospitality sectors
The regulations will have implications for employers in the food, retail and hospitality sectors that sell liquor. It is presumed that these regulations have been introduced as the consumption of alcohol in certain settings may compromise social distancing and responsible behaviour by citizens in circumstances where the state is seeking to contain the spread of COVID-19.
There are specific implications for employers who own and operate restaurants, taverns and clubs that sell liquor (referred to as "on-consumption premises selling liquor").
The regulations state that such establishments must be closed with immediate effect or if they choose to remain open, they are limited in terms of trading hours, number of customers and operations at any given time as follows:
Trading hours: such establishments may only be open between 09h00 and 18h00 on weekdays and on Saturdays while on Sundays and public holidays, trading can only occur between 09h00 and 13h00. This would also apply to restaurants that have takeaway facilities. However, recent statements made by the Minister of Police do not align to the wording of the regulations. According to the minister, such establishments may continue to remain open after 18h00 on weekdays and Saturdays, and 13h00 on Sundays, provided that they
do not sell alcohol. We therefore may see an amendment to the regulations in the coming days.
Number of customers: the regulation on gatherings prohibits the gathering of more than 50 people at premises where liquor is sold and consumed. Such establishments therefore need to ensure that they do not serve more than 50 people at any given time during the trading hours above.
Operations: such establishments must ensure that there is adequate space between all persons at all times. Adequate space means that there must be no more than one person per square meter of floor space. This is an onerous requirement and extends to all persons at the establishment including customers and employees.
Restaurants need to take into account, in complying with the adequate space limitation, that the number of people (50 or 100, depending on whether liquor is sold or not) includes employees. Therefore, in the assessment of one square metre per person, in respect of customers, this is likely to be in relation to the customer area alone.
Retailers that sell liquor (referred to as "off-consumption premises selling liquor") are only limited in terms of trading hours - such establishments may only be open between 09h00 and 18h00 on weekdays and on Saturdays while on Sundays and public holidays trading can only occur between 09h00 and 13h00. These provisions may also be amended in light of the minister's recent statements.
All premises that sell liquor and provide accommodation (which will include employers in the hospitality sector) must implement measures to stop the spread of COVID-19. This includes the adequate space requirement that is applicable to restaurants, taverns and clubs.
The regulations do not apply to persons or companies simply because they hold a liquor license. Rather, the regulations apply to the act of selling liquor. Therefore, employers that sell liquor should consider taking a business decision to stop selling liquor during this time in order to avoid the application of the regulations. It is advisable that if such a decision is taken that it is publicised by way of notices (at the premises), social media and any other means of communication to the public. Where decisions to stop selling liquor in its entirety, it is still necessary to comply with all directions in respect of hygienic conditions and limit exposure to persons with COVID-19.
It must also be noted that for the duration of the national state of disaster, no special or events liquor licenses will be considered by the authorities.
Implications for the education sector
The regulations stipulate that schools (and partial care facilities) must be closed between 18 March 2020 and 15 April 2020. This period may be extended during the national state of disaster.
The closure of schools has obvious implications for the education sector, particularly in terms of employment. It means that:
- Employees at schools and partial care facilities are not able to render their services at this time and this raises questions regarding remuneration and leave.
- Despite physical closure of schools, the employer may wish to consider alternative methods of teaching that involves distance learning and the use of technology. Such methods may amount to remote working which may remove the need for leave.
This regulation also has a ripple effect across all industries in that with children not being able to attend school and remain at home, employees may request to work from home or take leave.
The regulations seek to ensure that we, as a country, implement appropriate measures to contain the outbreak of COVID-19. As detailed above, these measures have far-reaching implications for employers.
Employers need to remain agile and flexible as this issue continues to develop. Employers who are proactive and forward-thinking in terms of their plans for business continuity will ensure that they contain, as far as possible, any negative impact on their businesses.
At this time, it may be necessary for employers to implement a policy or protocol to manage COVID-19 in the workplace. You are welcome to contact one of our employment partners should you require any assistance with this process.