The national state of disaster has been extended to 15 November 2020, and a further extension is imminent. Employers must become comfortable with the regulatory framework under alert level 1. Here are six things to keep in mind to ensure your business is compliant.

1.      Risk assessments and workplace plans

An employer is required to have a workplace plan and risk assessment, in compliance with the latest Directive from the Department of Employment and Labour issued on 1 October 2020. If your organisation’s plan or risk assessment was implemented prior to this date, it is likely that you are no longer compliant with the revised requirements. The Directive imposes additional requirements for employers employing more than 50 persons.

2.      Working from home

The stated preference in the Regulations is that all persons who can work from home must do so. Employees should not be required to return to work if their role can be performed remotely. 

However, if your organization is of the view that certain employees’ functions require them to be in the office, you may lawfully instruct those employees to return to work in person, provided that: 

• their work does not fall under an excluded business category (for example, a night club);
• a phased-in approach is adopted for the return to work; 
• health protocols and social distancing measures are complied with; and 
• the work is being done in a manner that avoids or reduces the risk of infection.

3.      Workplace precautions

If employees are no longer working from home, it is necessary to ensure that the workplace is set up in compliance with the regulatory framework and that employees are adhering to the required social distancing and PPE requirements. 

It remains a requirement that all employees wear a cloth face mask at the workplace. Employees regularly interacting with the public are also required to have a face shield or a physical barrier between the employee and the public.

Contact between employees must be minimised through the following measures:

• Employees’ work stations must be at least 1.5 metres apart or, where this is not possible, physical barriers between work places must be arranged or additional PPE provided free of charge;
• Employee break and shift times should be staggered when possible;
• Queue control must be implemented, including in canteens and lavatories, to ensure a distance of 1.5 metres between persons.

The change in working hours and other working conditions may constitute changes to terms and conditions of employment. Consultation with employees may therefore be necessary. Employers will generally be able to unilaterally change shift patterns, provided that there will be no change to overall working hours.

4.      After-hours permits

There is still a nationwide curfew in place. Under alert level 1, this curfew obliges persons to remain in their residence between 00:01 and 04:00 daily. 

However, employees who are required to attend at their workplace during these hours may do so, provided that they have a permit from their employer. 

Employees who do not have such permit can be liable, on conviction, to a fine or to imprisonment for a period not exceeding six months or to both such fine and imprisonment.

5.      POPI considerations

Employers are obliged to collect, store and share a significant amount of data related to employee screening results, risk assessment findings, employee testing results and recovery statistics. 

There are a number of considerations that need to be borne in mind when it comes to data privacy in terms of the Protection of Personal Information Act (POPI). One important consideration is that employers are only permitted to retain employees’ data for as long as necessary. For example, employee symptom screening results should be de-identified or destroyed weekly, after having been provided to the National Institute for Occupational Health (NIOH), as required by law.

Although there will be no enforcement of POPI’s provisions until 1 July 2021, a Guidance Note published by the Information Regulator earlier this year, requests companies to comply with POPI when processing personal information of data subjects for the purpose of containing the spread and reducing the impact of COVID-19, and in particular to take steps to ensure that such information cannot be used to discriminate against employees. Accordingly, we would recommend that all employers seek to comply with POPI in order to adopt best practice and to prepare for the stage when non-compliance with POPI’s requirements will result in legal consequences.

6.      Employees’ refusal to work

An employee may lawfully refuse to work if there is a serious risk of exposure of COVID-19 in the workplace.

If an employee refuses to work on this basis and the incident cannot be resolved by the company in consultation with the health and safety representative, the incident must be reported to a Department of Employment and Labour inspector within 24 hours and all parties must be notified of such action. 

An employer must comply with any written instruction issued by an inspector in terms of the Occupational Health and Safety Act.

Written by Jason Whyte and Laura Macfarlane, Director and Associate, Norton Rose Fulbright, Employment and Labour