Although South Africa has moved to level 1 of the Lockdown in terms of the National Disaster Management Act, resulting in more businesses being able to operate and fewer restrictions being in place, the Department of Employment and Labour have gazetted new measures to address, prevent and combat the spread of Covid-19 in the workplace.

On 1 October 2020, the Minister of Employment and Labour issued new regulations for businesses to operate under the National State of Disaster under Gazette number 11181 (“the new regulations”).

The new regulations impose strict requirements on businesses employing more than 50 employees, which can be onerous and time consuming for businesses.

By 22 October 2020 all businesses who employ more than 50 employees must submit a record of the risk assessment conducted by the business, as well as a Covid-19 workplace policy to the Department of Employment and Labour.

Such businesses are expected to carry out a risk assessment of their business premises and implement the minimum measures required by the new regulations issued by the Department of Employment and Labour which also include the requirements set out in the Occupational Health and Safety Act (“OHSA”).

Once businesses have conducted the required risk assessment, a comprehensive Covid-19 workplace policy needs to be developed and implemented by the business.

The Covid-19 workplace policy must include:

• the opening hours of the business;
• a list of employees permitted to return to work from the premises of the business and those employees who are required to work from home;
• a list of vulnerable employees;
• ways to minimise the number of employees at the workplace at any one time;
• the workplace protective measures required to be taken in terms of the new regulations to get the workplace Covid-19 ready;
• the measures taken to ensure the daily screening of employees and the screening of clients, contractors, and visitors to the workplace; and
• the details of the Covid-19 compliance officer appointed by the business.

Businesses are further expected to notify all employees of the content of the Covid-19 workplace policy, and the Covid-19 compliance officer must ensure that the Covid-19 workplace policy is implemented correctly and strictly complied with by the business.

The Department of Employment and Labour further requires businesses to submit a weekly report to the National Institute for Occupational Health containing the following data:

• each employee’s vulnerability status for serious outcomes of a Covid-19 infection;
• details of the Covid-19 screening of employees who are symptomatic;
• details of employees who test positive in terms of a positive laboratory test for the Covid-19 virus;
• the number of employees identified as high risk contacts within the workplace if an employee has been confirmed as being positive; and
• details on the post-infection outcomes of those testing positive, including the return to work assessment outcome.

Businesses are further required to inform their employees of the submission and must advise their employees of the business adherence to the Protection of Personal Information Act.

The Department of Employment and Labour requires all businesses to implement strict social distancing guidelines, provide sanitizers and disinfectants to employees and visitors, ensure proper ventilation of the workplace, and ensure that all employees and visitors wear masks.

In addition to the above, every business must screen employees and visitors when they report to the workplace. Businesses must have a record of all screening conducted should local authorities, empowered by the OHSA, conduct an inspection of the workplace.

The new regulations create an additional burden on all businesses in these tough economic times. However, non-compliance could result in a fine of up to R50 000.00, or imprisonment for a period not exceeding one year, or to both a fine and imprisonment being imposed on the business and any person who fails to comply with the Regulations and the OHSA.

The Department of Employment and Labour also recommend that small businesses comply with the new regulations. Businesses with 10 employees or less must develop a basic plan for the return of its employees and must conduct daily screening of their employees and must have a Covid-19 workplace policy in place. Small businesses are however not expected to submit their risk assessment report or Covid-19 workplace policy to the Department of Employment and Labour and do not have to submit data to the National Institute for Occupational Health.

The new regulations do not cover businesses which have between 11 and 49 employees, however we are of the view that such businesses should comply with the new regulations for small businesses. We therefore recommend that such businesses have a basic plan for the return of its employees to the workplace, conduct daily screening of their employees and visitors, and must have a Covid-19 workplace policy in place.

It is therefore critical that businesses ensure that they are compliant with the new regulations before 22 October 2020.

Harris Billings Attorneys can assist with all of your compliance needs to ensure your business does not risk the severe consequences of non-compliance under level 1 of the National State of Disaster.

We have a number of solutions available to suit your business needs. Contact our offices for further information and assistance.