An employer’s guide to Adjusted Level 3 Regulations

South Africa was moved to lockdown Level 3 on December 29, 2020 by President Cyril Ramaphosa following a more contagious variant of the Covid-19 virus.

With this comes an adjustment to regulations. Law firm Cliffe Dekker Hofmeyr compiled a comprehensive guideline with tips for employers to consider under the Adjusted Level 3 Regulations (AL3 Regulations).

Pay obligations

A hotspot area is defined as an area with higher Covid-19 infection rates.

Various hotspots around the country were identified during the holiday season. It is possible an employee may have been in a hotspot area during the holiday season. As an employer, the following obligations apply in terms of pay for employees:

• If an employee is able to work from home during the quarantine period, he/she should be permitted to do so and will then be entitled to their full salary. Where an employee is unable to work from home, annual leave will apply. If the employee has exhausted their annual leave, the principal of no work no pay applies as the employee will be placed on unpaid leave.
• The employer should notify an employee of the quarantine process should they be returning from a hotspot area. The employer should also discuss the pay process for this period with the employee.
• According to the firm, asking an employee to self-quarantine after making a journey to or from a hotspot area does not amount to unfair discrimination.
• Further to this, an employer may not discipline an employee for not adhering to Covid-19 protocols when outside of the workplace but can encourage employees to adhere to these protocols at all times.

Employer and business owner obligations

All business owners or operators of indoor and outdoor facilities must display a certificate of occupancy detailing the capacity of the venue.

An employer also has the following obligations and responsibilities:

• adhere to all sector specific or other health and safety protocols issued to date;
• appoint a compliance officer to enforce compliance with the AL3 Regulations and all other health and safety protocols issued to date;
• prohibit employees from entering the workplace or performing their duties unless an employee is wearing a face mask;
• determine the floor plan area of the workplace and the number of persons who may enter the workplace based on the floor plan area, while still maintaining a physical distance of 1.5m;
• ensure all persons queuing either inside or outside their premises maintain a physical distance of 1.5m;
• take measures to enforce physical distancing of 1.5m in its workplace, including implementing measures such as remote work, restrictions on face-to-face meetings and taking special measures in relation to employees who are considered vulnerable due to their age or co-morbidities; and
• provide hand sanitisers outside its premises.

Workplace gathering and social distancing

• Workplace gatherings are permitted provided persons maintain a physical distance of 1.5m and adhere to all health and safety protocols including sanitation and the wearing of face masks.
• All business premises are limited to 50 per cent capacity of its floor space which includes both customers and employees, subject to strict health protocols and physical distancing restrictions.

Prohibited activities and places closed to the public in terms of AL3 Regulations

The following places remain closed:

• Night clubs;
• Swimming pools, save for the training of professional athletes or swimming contests permitted in the AL3 Regulations;
• Bars, taverns and shebeens;
• Parks and recreational activities where there are no access control measures; and
• All other places determined by the Cabinet Minister responsible for cooperative governance and traditional affairs.

The following activities remain prohibited:

• Initiation practices and post-initiation practices;
• Evictions, unless by order of a competent court;
• The sale, dispensing and distribution of alcohol; and
• All gatherings, including funerals, that do not comply with the restrictions imposed in relation to the specific activity.

Curfew

The national curfew is in place from 9pm to 6am daily, unless permitted otherwise for reasons such as in a medical emergency, citizens are to remain in their place of residence during the curfew.

The following business and public places must close operations by 8pm:

• Cinemas
• Theatres
• Casinos
• Museums, galleries and archives
• Gyms and fitness centres
• Restaurants
• Venues hosting auctions
• Venues hosting professional sport

Offences and penalties

Employers who commit, among other things, the following offences will be liable to a fine or imprisonment not exceeding six months, or both:

• Exceeding the customer and/or employee allowance based on their floor plan determination;
• The sale, dispensing and distribution of alcohol;
• Where applicable, failure to adhere to the curfew of 8pm; and
• Adherence to restrictions in relation to limitations pertaining to gatherings.

Reinforcement of operations in 2021

An employer may implement the following measures to mitigate the risk of a Covid-19 outbreak in the workplace following the holiday season:

• Send communication to all employees ahead of the return to work encouraging them to adhere to all health and safety protocols outside the working environment;
• Remind employees ahead of the return to work of the mandatory health and safety measures as required by government;
• It is advisable that all employees who visited a hotspot area over the festive period disclose same to the human resources department or the Covid-19 compliance officer;
• It is advisable that all employees returning from holidays in area’s identified as hotspots observe the mandatory 10-day quarantine period;
• Encourage employees who display any symptoms of COVID-19 to remain at home and, in serious cases, to submit themselves for testing;
• Maintain strict screening protocols upon entrance to the workplace in 2021 including enforcing the wearing of masks and the use of hand sanitiser before entering the workplace; and
• Ensure that all health and safety measures are strictly adhered to, as many employees may be asymptomatic.

Can an employer institute a mandatory vaccination policy once a vaccine becomes available?

Employers have an obligation to protect their employees and maintain a healthy and safe working environment.

When considering whether to implement a mandatory vaccination policy employers must have regard to their individual workplaces and access whether such a policy is in fact necessary taking into account, among other things, the following factors:

• Viability of continued remote work;
• Number of vulnerable employees in the workplace;
• Effectiveness of additional PPE where necessary;
• Temporary alternative placements;
• Employees exposure to the public; and
• Number of employees with religious and/or medical grounds for objection.

The requirement for such a policy should be determined on a case-by-case basis and the objections of employees or potential employees must also be duly considered with regard to the requirement to balance various rights.

Employers must ensure that their records of infected employees are kept updated as this is a factor to also be taken into account.

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