BY: EPHRAIM KUNGWIMBA
South Africa has been under lockdown since 26 March 2020. Although the lockdown’s purpose was initially accepted by the greater part of South Africa, the domino effect it has had on the citizens of the Republic as well as its ailing economy have been devasting.
The government introduced various mitigation measures for individuals and businesses such as the Temporary Employer/Employee Relief Scheme as well as the grant system for qualifying individuals.
Three months down the road, South Africa still found itself in lockdown in an untenable situation. Mounting pressure from employees as well as various sectors put pressure on the government and induced them to inevitably review their lockdown policies.
The Government introduced a five-tier alert level system which indicated the level of restrictions placed on businesses as well as individuals. Alert level 5 was the most restrictive and alert level 1 is the least restrictive.
The Government has elected to move from level 3 to a more relaxed level of level 3 with less restrictions. This in turn has meant that certain businesses which were restricted can return to some form of operation while complying with various lockdown directions.
The businesses which are allowed to operate and the conditions under which they are allowed to operate will be discussed below.
THE REGULATIONS
The Minister for Small Business Development, Khumbudzo Ntshavheni issued further regulations in terms of the Regulations published in Government Gazette No. 43364, Government Notice No. 608 of 28 May 2020. Government Gazette Notice No.696 of 19 June 2020 details which businesses may open.
The categories of services that are deemed safe to resume operations are the following—
(a) Hairdressing;
(b) Barbering;
(c) Nail and toe treatment;
(d) Facial treatment and make-up;
(e) Body massage; and
(f) Tattooing and body piercing.
The common factor amongst these businesses is that they are of close contact in nature and businesses need to ensure that the comply with the directions under the regulations or face closure from the Department of Labour Inspectors.
These protocols put in place by the Minister apply to formal and informal salons for hair, face, nails, body treatments and tattooing. It has been reaffirmed that the protocols do not replace the Regulations and Directives issued under the Disaster Management Act. They are merely supplementary.
All personal care businesses which are allowed to operate, will adhere to the following basic principles applicable to all salons:
- Hand washing;
- Social distancing between customers and staff wherever possible;
- The use of cloth masks at all times, and more protective masks for close facial contact and
- Cleaning and disinfecting of touch areas and equipment.
Another vital Regulation that businesses should familiarise themselves with prior to opening is GNR.639 of 4 June 2020, which is the Consolidated COVID-19 Direction on Health and Safety in the Workplace issued by the Minister in terms of regulation 4 (10) of the National Disaster Regulations (Government Gazette No. 43400).
The Direction remains in force for as long as the declaration of a national disaster published in Government Gazette 43096 on 15 March 2020 remains in force.
Section 17 of the Regulations states that as and when any regulations made in terms of section 27 (2) of the Disaster Management Act permit industries, businesses, entities both private and in the public sector to commence operating, every employer commencing operations must—
- undertake a risk assessment in terms of clause 20.1 to 20.3;
- on the basis of that risk assessment, develop a plan outlining the protective measures in place for the phased return of its employees before opening;
- consult on the risk assessment and plan with—
- any representative trade union as contemplated by section 14 (1) of the Labour Relations Act, 1995 (Act No. 66 of 1995); and
- any health and safety committee established in terms of section 19 of OHSA; or
- in the absence of such a committee, a health and safety representative designated in terms of section 17 (1) of OHSA or employee representative; and
- make that plan available for inspection by an inspector and a person contemplated in clause 17.3.
If the employer employs more than 500 employees, that employer must submit a record of its risk assessment together with a written policy concerning the protection of the health and safety of its employees from COVID-19 as contemplated in section 7 (1) of OHSA to its health and safety committee established in terms of section 19 of OHSA; and the Department of Employment and Labour within 21 days of the commencement of the Direction.
Employers with 10 employees or less must take the following measures:
- If the employer is permitted to recommence operations under the Regulations, it must develop a basic plan for the phasing in the return of its employees taking into account those that are able to work remotely and those over the age of 60 years or who have comorbidities;
- arrange the workplace to ensure that employees are at least one and half metres apart or, if not practicable, place physical barriers between them to prevent the possible transmission of the virus;
- ensure that employees that present with the symptoms set out in clause 25.1 are not permitted to work;
The content which is to be included in the risk assessment plan is detailed in section 18 of the Regulation. The employer contemplated in clause 17 must phase the return of their employees to work in accordance with the plan that is drafted.
There are further health and safety measures detailed by the regulation which should be implemented by businesses include the following:
- Social distancing measures
- Symptom screening
- Sanitizers, disinfectants and other measures
- Cloth masks
- Measures in respect of workplaces to which public have access
- Ventilation
- Specific Personal Protective Equipment
CONSEQUENCES OF NON-COMPLIANCE
Section 57 and 59 of the Regulation deals with the monitoring and enforcement of the direction. If a person fails to comply with the direction, an inspector may perform any of the functions in section 29 of OHSA and exercise any of the powers listed in section 30 of OHSA in order to monitor compliance with this Direction.
Action an inspector may take in terms of Section 30 of the OHSA:
- the inspector may in writing prohibit that employer from continuing or commencing with the performance of that act or from requiring or permitting that act to be continued or commenced with, as the case may be.
- an inspector may block, bar, barricade or fence off that part of the work-place, plant or machinery to which the prohibition applies, and no person shall interfere with or remove such blocking, bar, barricade or fence.
- the inspector may in writing direct that employer or user to take within a period specified in the direction such steps as in the inspector’s opinion are necessary to comply with the said provision, and are specified in the direction.
In so far as any contravention of this Direction constitutes a contravention of an obligation or prohibition under OHSA, the offences and penalties provided for in section 38 of OHSA apply.
These penalties include:
- A person contravening certain sections of the act is guilty of an offence and on conviction be liable to a fine not exceeding R50 000 or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.
- Any employer who does or omits to do an act, thereby causing any person to be injured at a work-place, or, in the case of a person employed by him, to be injured at any place in the course of his employment, or any user who does or omits to do an act in connection with the use of plant or machinery, thereby causing any person to be injured, shall be guilty of an offence if that employer or user, as the case may be, would in respect of that act or omission have been guilty of the offence of culpable homicide had that act or omission caused the death of the said person, irrespective of whether or not the injury could have led to the death of such person, and on conviction be liable to a fine not exceeding R100 000 or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.
- the court convicting him may, in addition to any punishment imposed on him in respect of that offence, issue an order requiring him to comply with the said provision within a period determined by the court.
An inspector may for the purpose of promoting, monitoring and enforcing compliance with the OHSA, advise employees and employers of their rights and obligations in terms of this Direction in accordance with section 64 of the BCEA.
CONCLUSION
The above guidelines constitute a summary and is not an exhaustive list of the provisions provided by the Regulations. Employers who intended on reopening their businesses are urged to study the Regulations in their entirety to make an informed decision.
It is vital that businesses familiarise themselves with all the Regulations which are still applicable. Businesses must ensure a strict adherence to the Regulations or they could face closure not only from the Department of Labour as aforementioned, but Covid-19 should staff become infected.
