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September 2020

A Guide to Legal Requirements in the workplace during Covid-19

Written by Nathalie Leblond
Coronavirus Insights

The 18th of August saw SA's lockdown ease to Level 2, and under level 2 nearly all of our economy has reopened - with just a few exceptions.

 But with the easing of lockdown comes increased movement of people and more workers returning to their physical workplaces, and this in turn means that employers are asking what their duties and responsibilities are towards their employees in the workplace, and that employees may be asking similar questions of their employers. 

We know that it can be hard to keep abreast of what each Lockdown level means for you and your business, and to answer employees when they have questions. Here we have compiled the answers to some of the most frequently asked questions we've been receiving - specifically with regard to hygiene in the workplace and what it means for employers and employees under Level 2. 

Wherever possible I have based my answers on the original gazetted
Alert Level 2 regulations found here: Gazette 43620 of 17 August 2020 or on the Regulations gazetted by the Government for the previous lockdown levels, all found here.

Safety in the workplace is also extensively gazetted in the Consolidated Coronavirus COVID-19 Direction on Occupational Health and Safety Measures in Workplaces (available here as a complete PDF version of Gazette 43400 of 4 June 2020) and is an excellent reference for businesses wanting to make sure they are doing the right things.

Some FAQ’s regarding hygiene protocols and pandemic prevention in the workplace at the moment:

1. Do I have to go back to the office/ bring my employees back into the office? 

For now, employees who can work from home - especially those classed as vulnerable* - remain strongly encouraged to do so. According to the Government, “all persons who are able to work from home must do so” even on Level 2.  So if employees can perform their jobs fully and safely at home, there should be no reason to insist on reopening the office just yet.

*Vulnerable employees: In the terms of the guidance document published by the Department of Health a vulnerable employee is broadly defined as someone with known or defined co-morbidity, someone with a depressed immune system, or someone over the age of 60, because they are at a higher risk for serious complications and severe illness from COVID-19.

2. Do employees have to wear masks at work? 

Level 3 lockdown rules state that employees are required to wear a mask at work, because:
an employer may not allow any employee to perform any duties or enter the employment premises if the employee is not wearing a cloth face mask … or another appropriate item that covers the nose and mouth while performing his or her duties.”

Employers must also require members of the public entering their workplace to wear masks. As these regulations have not been revised in the Level 2 lockdown guidelines, it means they are still applicable under level 2.

* BTW: the Government defines a face mask as: "a cloth face mask or a homemade item that covers the nose and mouth, or another appropriate item to cover the nose and mouth". 

Read our blog post: 10 things you need to know about wearing a mask to make sure you are doing it right. 

3. Must employers provide employees with a mask?

Yes, they must: employers are required to provide each of its employees, at no cost, with a minimum of two cloth masks, which comply with the requirements set out by Government, for the employee to wear while at work and while commuting to and from work.

4. If employees are wearing masks, do they also have to practice social distancing at work?

Under level 4 regulations, social distancing in the workplace was required as follows: "workplaces must be arranged to ensure a minimum of 1.5 meters between workers"

This is still the requirement for social distancing, and that applies even when colleagues are wearing masks. However, the regulations added this caveat: "If this is not practicable, physical barriers must be erected and workers must be supplied free of charge with appropriate Personal Protective Equipment (PPE)."

5. What else are we required to do to minimise risk? 

Level 2 regulations require that businesses with more than 100 employees, working together in a group in the same floor space, must where possible, make provision for minimising the number of employees at the workplace at any given time.

This should be done through rotation, staggered working hours, shift systems, remote working arrangements or similar measures, in order to achieve social distancing.

Don't forget that social distancing must also be implemented in all common areas in and around the workplace to prevent crowding, including working spaces, canteens and meeting rooms. Detailed guidelines of how business can promote social distancing can be found here.

6. Do I have to provide sanitiser for colleagues at work?

YES! Employees and visitors need to sanitise their hands before entering the workplace, and to wash their hands frequently during the day.

Regulations dictate that "every employer must ensure that there are sufficient quantities of hand sanitizer at the entrance of, and in, the workplace which the workers or other persons are required to use, free of charge."

Don't forget that proper hand washing with soap and water and then proper drying is still the number one way to beat illnesses transmitted by hands.  

7. Does my workplace have to have to have a wellness policy?

You may not need a written wellness policy, but you will need a workplace plan for a phased return to work prior to reopening.  The workplace plan must must include a procedure for the compulsory screening of all persons entering the workplace, as well as a procedure for the safe evacuation of persons from the workplace who present with symptoms of COVID-19, without endangering other employees or the public.

The information contained in the workplace plan must also include the details of the employees permitted to return; how the employer intends to phase in the return to work, the details of the COVID-19 Compliance Officer and the health and hygiene protocols.

8. Do I need to appoint a Compliance Officer?

Yes. As you can see from the requirements of the workplace plan (above) you'll need to designate someone as the Compliance Officer who must ensure: "that all directions in respect of hygienic conditions and limitation of exposure to persons with COVID-19 are adhered to.

The name and contact information of the Compliance Officer must be displayed in a visible area and must be communicated to employees.

8. Do I have to disinfect the workplace everyday?

Every employer must take measures to ensure that all work surfaces and equipment is thoroughly cleaned before work starts, regularly during the day, and again after work has finished for the day. 

All areas such as toilets, common areas, door handles, and shared electronic equipment must be regularly cleaned and disinfected. 

9. Do I have to take my employees' temperature every day? 

Your workplace plan (above) requires you to decide on the compulsory screening process you are going to employ, and Level 2 requirements reiterate this: employers are obliged to “screen employees daily for symptoms of COVID-19 and refer the employees who display symptoms for medical examination and testing where necessary”.

Temperature checks remain - for most employers - the most convenient form of screening, so on that basis, the answer is yes.  Unless of course you plan on using an alternate method of daily screening such as a health questionnaire. 

10. Do my employees have obligations?

We believe that the responsibility for health and safety in the workplace should always be shared.  Whilst the onus is on the employer to ensure that the workplace is safe for employees to return, employees need to abide by any policies adopted by their employers, and inform their employer if they are aware of any risks to the health of their colleagues.

11. Can I - or my employees - travel for work? And if so, where can we go?

Yes, you can travel for work-related purposes, as long as you don’t need to cross a border. Our borders are still closed, so for now, all travel is within South Africa.  Domestic passenger flights are permitted, but there is still no international air travel allowed for the general public (unless under very specific circumstances such as repatriation).

12. Is there still a curfew?

Unfortunately, the answer to this question is yes, there is still a curfew on Level 2. Curfew starts at 10pm, and ends at 4am and between these times everyone is meant to stay at home “except if you have been granted a permit ... or are attending to a security or medical emergency.

13. Which industries are still closed?

The following industries are still closed under Level 2:

  • Night clubs.
  • International passenger air travel for leisure purposes.
  • Passenger ships for international leisure purposes.
  • Attendance of any sporting event by spectators.
  • International sports events.

President Ramaphosa cautioned all of us to remain vigilant so as to ensure that South Africa is not subject to a “second wave” of COVID-19 infections. Both businesses and their employees remain obligated to comply with strict health and safety protocols, including social distancing, hygiene practices and the wearing of masks.  

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Nathalie Leblond

Nathalie Leblond

I joined Rentokil Initial South Africa in 2004 as the PA to the MD, and after 6 months maternity leave I re-joined the Company in 2009 as the Marketing Co-ordinator for Rentokil. I'm now the Marketing Communication Manager for Rentokil Initial. I'm still terrified of cockroaches (Americana's only!) but the rest of the creepy crawlies we deal with don't really bug me (see what I did there?), so I guess I'm in the right industry! I am passionate about what we do here at Rentokil Initial and also write for our Hygiene Blog, which can be found at www.initial.co.za. Life outside of Rentokil mostly revolves around my daughter, who has just turned eleven, and my husband (who is a bit older). I love living in Cape Town and wouldn't trade living here for anywhere else in the world.

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