South Africa: COVID-19: Regulations And The Workplace

Introduction

The Coronavirus (COVID-19) outbreak was declared a pandemic by the World Health Organisation (WHO) on 11 March 2020.

On 15 March 2020, in response to the magnitude and severity of the COVID-19 outbreak, South Africa declared a national state of disaster and President Cyril Ramaphosa announced significant measures that would be put in place in an attempt to inhibit the spread of COVID-19 in South Africa.

On 18 March 2020, regulations promulgated by the Minister of Cooperative Governance and Traditional Affairs in accordance with the National Disaster Management Act 57 of 2002, came into effect (Regulations).

On 23 March 2020, President Ramaphosa declared that there would be a national lockdown from 23:59 on 26 March 2020 for a period of 21 days until 23h59 on 16 April 2020 (Lockdown). On 25 March 2020, amendments were made to the Regulations through a further set of regulations made by the Minister (Amendment Regulations). The Amendment Regulations both amended certain portions of the Regulations and inserted new provisions into the Regulations, the most material of which were the regulations contained in the new Chapter 2 of the Regulations, which set out certain regulations relating to the Lockdown. On 26 March 2020, the Regulations were slightly amended again by means of a further set of regulations made by the Minister.

This note outlines some of the (now twice amended) Regulations and what their implications may be for employers, employees and the workplace.

The regulations made in terms of the Disaster Management Act

The Regulations set out the steps deemed necessary to prevent an escalation of the COVID-19 pandemic or to alleviate, contain and minimise the effects of the COVID-19 pandemic – i.e. to flatten the curve. The Regulations are wide-ranging and authorise certain other Ministers to issue (and then vary) directions in relation to the spread of COVID-19 within their mandates.

Regulations applicable during the State of Disaster and the Lockdown

In terms of the Regulations, during the State of Disaster, and during the Lockdown:

• gatherings are prohibited. Gatherings were originally defined as any assembly, concourse or procession of more than 100 persons, wholly or partially in open air or in a building or premises. After having been amended by the Amendment Regulations, gatherings are now defined as any assembly, concourse or procession in or on any public road, as defined in the National Road Traffic Act, or, any other building, place or premises, including wholly or partly in the open air, and including, but not limited to, any premises or place used for any sporting, entertainment, funeral, recreational, religious or cultural purposes. Any person who convenes a gathering is guilty of an offence and, on conviction, is liable to a fine or to imprisonment for a period not exceeding six months or to both such fine and imprisonment;
• no person who has been confirmed, as a clinical case or as a laboratory confirmed case 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 consent to:
  - submission of that person to a medical examination, including but not limited to the taking of any bodily sample by a person authorised in law to do so;
  - admission of that person to a health establishment or a quarantine or isolation site; or
  - submission of that person to mandatory prophylaxis, treatment, isolation or quarantine, or isolation in order to prevent transmission; and
• should that person not comply with the instruction or order of the enforcement officer, that person must be placed in isolation or quarantine for a period of 48 hours, as the case may be, pending a warrant being issued by a competent Court, on application by an enforcement officer for the medical examination contemplated above; and
• it is a criminal offence to publish any statement, through any medium, including social media, with the intention to deceive any other person about:
  - COVID-19;
  - COVID-19 infection status of any person; or
  - any measure taken by the Government to address COVID-19.

Regulations applicable during the Lockdown

In terms of the Regulations, during the Lockdown inter alia:

• every person is confined to their place of residence, unless strictly for the purpose of performing an essential service, obtaining an essential good or service, collecting a social grant, or seeking emergency, life-saving or chronic medical attention;
• every gathering is prohibited, save for attendance at a funeral which is limited to 50 people and will for the purposes of the Regulations not be regarded as a prohibited gathering, provided that no night vigil shall be held and that all safety measures are strictly adhered to;
• all businesses and other entities shall cease operations, except for any business or entity involved in the manufacturing, supply, or provision of an essential good or service, save where operations are provided from outside of South Africa or can be provided remotely by a person from their normal place of residence;
• retail shops and shopping malls must be closed, except where essential goods are sold and on condition that the person in control of the store must put in place controls to ensure that customers keep a distance of at least one square meter from each other, and that all directions in respect of hygienic conditions and the exposure of persons to COVID-19 are adhered to;
• retail stores selling essential goods are prohibited from selling any other goods;
• any place not involved in the provision of an essential good or service must remain closed to all persons;
• all workplaces or premises must have care and maintenance that is essential to the prevention of the destruction or significant impairment of working areas, plant, machinery or inventory, or to permit orderly shutdown arrangements, on such conditions as may be issued by means of directions by the Cabinet members responsible for trade and industry, and for employment and labour;
• services in relation to international markets and which provide or maintain essential services as it relates to health, social support, government and financial services, which the Cabinet members responsible for health and trade and industry are satisfied are crucial to such services, may be provided for in directions issued by the said Cabinet members;
• the head of an institution must determine essential services to be performed by their institution and must determine the essential staff who will perform those services. The head of an institution may delegate this function as may be required in line with the complexity and size of the business operation;
• persons performing essential services must be duly designated in writing by the head of an institution, on a form that corresponds substantially with the form provided in the Regulations;
• all commuter transport services are prohibited, except that persons may use bus services, taxi services, e-hailing services and private motor vehicles for purposes of rendering essential services, obtaining essential goods, seeking medical attention, funeral services and to receive payment of grants, provided that bus services, taxi services and e-hailing services shall not carry more than 50% of the licensed capacity, that private vehicles shall not carry more than 60% of the licensed capacity, and that all directions in respect of hygienic conditions and the limitation of the exposure of persons to COVID-19 are adhered to; and
• where persons rendering essential services are unable to travel to and from their place of employment, the employer must make the necessary transport arrangements, provided that no more than 50% of the licensed capacity of the vehicle or vessel is exceeded and all directions in respect of hygienic conditions and the limitation of exposure to persons with COVID-19 are adhered to.

The regulations and the workplace

Employers should warn employees about the seriousness of misinformation about COVID-19. In this regard, employers may be entitled to discipline employees who publish any statement on social media, with the intention to deceive any other person about COVID-19, the COVID-19 infection status of any person, or any measure taken by the Government to address COVID-19, in the same way that an employer would be entitled to discipline an employee who published on social media any other kind of reprehensible and/or unlawful statement that could cause reputational and/or other risk for the employer.

In relation to employees who are not providing essential services during the lockdown and who are prevented or precluded by the Regulations from tendering their services to their employer, there is no reason why the "no work no pay" principle could not apply. However, there are many factors that have to be considered in this regard. Employees may be able to tender their services remotely and from their homes or may be able to tender their services partially. Legal advice should be sought in this regard before any decisions are made. There are also various measures put in place by the Government to support businesses and employees and to prevent the retrenchment of employees during this difficult time.

In relation to employees who are providing an essential service:

• once properly designated as an essential staff member who is performing an essential service, the employee will be obliged to report for duty as directed by their employer;
• should employees be unable to travel to and from their place of employment due to the prohibitions on public transport, the employer must make the necessary transport arrangements for them;
• an employee rendering an essential service may, under certain circumstances, lawfully refuse to report for duty at their place of employment/workplace if their work environment is unsafe either in terms of the Occupational Health and Safety Act or the Mine Health and Safety Act;
• should an employer, in accordance with the Regulations, be required to make the necessary transport arrangements for their employees performing essential services, but be unable to do so, depending on the circumstances, the employer will not necessarily be released from its obligation to remunerate those employees; and
• it is important that employers comply with the provisions of, inter alia, the Labour Relations Act, the Basic Conditions of Employment Act, Occupational Health and Safety Act, the Mine Health and Safety Act as well as comply with the hygiene and social distancing provisions under the Regulations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.