New Occupational Health and Safety Measures

INTRODUCTION

Since the beginning of the Covid-19 lockdown, the Department of Labour has issued directives (Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces), giving guidance on the measures that companies need to take to ensure that their workplaces are as safe as possible and to prevent the transmission of the virus.

On 1st October 2020, a new Directive was published which requires that all companies with more than 50 employees will have to comply with administrative duties which before were only required by companies with more than 500 employees.

WHAT IS NEW

Companies have previously had to undertake a risk assessment and to develop a workplace plan to implement the safe return of employees to the workplace. This plan must now include a dispute process to manage the process where there are employees who refuse to return to work because of fears of infection.

Companies with over 50 employees must:

  1. Submit a record of their risk assessment together with a written COVID-19 Occupational Health and Safety Policy to the Department of Employment and Labour by no later than the 21st October 2020.
  2. They must also submit the following data to the National Institute for Occupational Health:
    1. To be submitted once
      1. Each employee’s vulnerability status for serious outcomes of a Covid-19 infection.
    2. To be submitted weekly
      1. Details of the daily symptom screening data
      2. Details of employees who test positive for COVID-19
      3. The number of employees identified as high-risk contacts (and who have been quarantined) as a result of exposure to a worker who has tested positive for Covid-19 and
      4. Details on the post-infection outcomes of those testing positive, including the return to work assessment outcome.
  1. Report employees who display symptoms of Covid-19 and are suspected to have contracted the virus in the workplace to the Compensation Commissioner following the guidelines in the directive on Compensation for Workplace acquired Novel Corona Virus Disease.

WHAT TO DO IF A PERSON SHOWS SYMPTOMS OF COVID INFECTION

If an employee shows symptoms at the workplace, the employer must arrange for the worker to be transported to a public health facility for testing.
The employee is required to self-isolate and exposed employees are required to self-quarantine for 10 days (reduced from 14).

EMPLOYEES WHO REFUSE TO WORK

In previous directives there were guidelines of the steps to be taken if an employee refuses to work if circumstances arise which, with reasonable justification, appear to the employee to pose a risk of exposure to Covid-19.
The new directive requires that where the matter cannot be resolved by the safety representative (committee) and the Compliance Officer, the employee must refer it to an inspector within 24 hours and all parties must be informed of the referral.
The inspector is empowered to issue a prohibition notice in terms of section 38 of the Occupational Health and Safety Act if they are of the opinion that the conditions in the workplace threatens the safety of any person.

We were really hoping that the lockdown would be lifted before having to comply with this legislation, but as it has been extended for another month, we will be required to comply. Failure to do so could mean a fine in terms of section 38 of the Occupational Health and Safety Act (currently R50 000-00 or one year in prison). We have developed formats for the reporting requirements and have posted all relevant legislation on our website.

Breaking News: TERS (2020/10/01)

Applications for TERS for the period 16 August 2020 to 15 September 2020 opened this morning. 

The UIF fund seems to have been working hard to try and resolve problems experienced in the months to July 2020 and we are trying to resolve issues that occurred in the payout for the July/September period, however, the call center appears to not be operational at this time.

In an announcement today the following was posted on the DOL Website:

The Unemployment Insurance Fund (UIF), which has so far disbursed R45-billion (R45 244 060 501.31) in 10 212 116 payments through 902 775 employers, will from Thursday, 1 October 2020 start processing Covid-19 TERS applications for the period covering 16 August to 15 September 2020. 

The payments are part of the government wide basket of services to ensure that workers were not exposed to the worst effects of the pandemic – the lockdown that brought the economy to a halt.

Through these cash disbursements via employers, government, through the Ministry of Employment and Labor, has seen to it that many families who would otherwise not have had anything to eat were shielded from falling into the poverty trap.

“To apply for the September period, employers are required to upload similar documentation that include: signed approval or acceptance letter, bank confirmation letter, proof of payment to employees, and refund to the UIF – if applicable”, said the Acting UIF Commissioner Marsha Bronkhorst. 

Applications will undergo a vetting process with external partners to ascertain the validity of claims before the funds are paid and to ensure that the new controls weed out fraudulent claims.

“Early signs of the new vetting process with external partners show that we are on the right track, as we have been able to pick up potentially fraudulent claims. Payments to these claims have been stopped and have been referred to our Risk Management Unit for further investigation.

“We are also subjecting claims applications by foreign nationals to the Department of Home Affairs to ensure that we pay to authentic and deserving beneficiaries, and we shall immediately start paying these claims upon the completion of the vetting process by Home Affairs,” concluded Bronkhorst. 

It is important to note that Covid-19 TERS claim applications for April and May paid closed on 25 September 2020. Claims for June period will close on 15 October 2020 and July/August claims will close on 30 October 2020.

The extension of the payments was announced by the Minister Thulas Nxesi widening the net of the Covid TERS scheme till the end of the National State of Disaster.

We therefore anticipate an extension of the scheme to at least 15 October 2020.

Breaking News: TERS (2020/09/07)

New Directive extends TERS until the end of the COVID 19 Disaster

The Minister of Employment and Labour published a new Directive today extending the TERS benefit.  This extension in the terms of the directive:

shall be in operation for as long as the declaration of the COVID-19, in terms of the National Disaster Management Act, 2002(Act No. 57 of 2002), as a national disaster subsists or is withdrawn by the Minister, whichever comes first.”

This means that there is a further extension until at least 15 September (the date the Disaster Management Act has been extended to.

Having said that, no one to our knowledge has received the July/August TERS yet.

There has also been a clarification in a document called Extension Direction Communication.  The definition of who TERS can be applied for has had the following added to it.

  1. TERS can be applied for when vulnerable employees are unable to return to work, i.e. they have comorbidities or health issues which place them at a higher risk of complication or death should they contract the virus
  2. Employers can apply if:
    • They are not permitted to commence operations either partially or fully by the Regulations
    • They are unable to make arrangements for vulnerable employees to work from home
    • They are unable to fully employ staff because of economic, technological, structural, or similar needs caused by compliance to regulations
    • They are required to limit the number of employees at the workplace through rostering, staggering of working hours, short time or the introduction of shift systems and the temporary reduction in the employee’s ordinary remuneration.

The Directive has been back dated to 15 August 2020.

We are not sure when applications will open, but we have been warned that the DOL is intending to close applications for previous months. 

FOR MORE INFORMATION REGARDING TERS SEE OUR COVID-19 GUIDE ON OUR WEBSITE

Employment Equity Reporting 2020

According to the Employment Equity Amendment Act 2013, a designated employer must submit a report to the Department of Labour once every year.

Please remember that a designated employer is defined as:

  1. an employer who employs 50 or more employees;
  2. an employer who employs fewer than 50 employees, but has a total annual turnover that is equal to or above the applicable annual turnover of a small business as defined in the table below:
Sector or Subsections in Accordance with The Standard Industrial ClassificationTotal Annual Turnover
AgricultureR 6 million
Mining and QuarryingR 22.50 million
ManufacturingR 30 million
Electricity Gas and WaterR 30 million
ConstructionR 15 million
Retail and Motor Trade and Repair ServicesR 45 million
Wholesale Trade, Commercial Agents and Allied ServicesR 75 Million
Catering Accommodation and other TradeR 15 million
Transport, Storage and CommunicationsR 30 million
Finance and Business ServicesR 30 million
Community, Social and Personal ServicesR 15 million

Failure to comply could result in a fine of between R 1 500 000.00 and R 2 700 000.00 or between 2% and 10% of turnover – whichever is greater.

In the event that you would require our assistance in the submission of the required reports and in order for Connold and Associates to accurately determine whether your company is classified as a designated employer, please can we request that you provide Tessa at our offices with:

  • The projected number of employees on your payroll as at 1 August 2020
  • The company’s current annual Turnover
  • Confirmation of Sector company is registered under

Employment Equity inspections – Employment Equity Plans

Employment Equity inspections are in progress by the Department of Labour and are specifically focusing on the implementation and validity of Employment Equity Plans.
 
The act requires companies to include in their Employment Equity plans, a strategy and time frame to implement and rectify under-representation of persons from designated groups.
 
The Department of Labour has indicated that EEA2 reports will not be received as legitimate submissions without proper consultation and communication strategies in place that inform all employees of the EE Act.
Companies that do NOT have Employment Equity plans in place may be fined for contravention of the act: The greater of R 1.500 000 or 2% or the employer’s turnover. In addition, companies that have falsely reported on Employment Equity plans or do NOT have such plans in place will be criminally prosecuted

Please contact Tessa Lourens at our office or using this form if you would like us to assist with the relevant submission of your EE report to the Department of Labour.

Breaking News: TERS (2020/08/12)

The way is cleared for applications for TERS for July and August

The Minister of Employment and Labour published a new Directive today (which has been placed onto the Department of Labour Website) extending the TERS benefit to the 15th August 2020 in terms of section 4 (10) of the Regulations issued in terms of the Disaster Management Act.  There are a few other notable changes to the Scheme:

  1. TERS can be applied for when vulnerable employees are unable to return to work, i.e. they have comorbidities or health issues which place them at a higher risk of complication or death should they contract the virus
  2. Employers can apply if:
    1. They are not permitted to commence operations either partially or fully by the Regulations
    2. They are unable to make arrangements for vulnerable employees to work from home
    3. They are unable to fully employ staff because of economic, technological, structural or similar needs caused by compliance to regulations
    4. They are required to limit the number of employees at the workplace through rostering, staggering of working hours, short time or the introduction of shift systems.

The Directive has been back dated to 27 June 2020 and remains in operation to 15 August 2020.

We expect the website to open for applications this week.

DISCREPANCY TAB

A new functionality has been added to the system which allows for employers to correct information for an employee that they consider has been incorrectly paid through the TERS.  Called the Discrepancy Tab it will allow for that employee to be reassessed.

THE EFFECT OF TERS

In a media briefing published on 3 August 2020, it was announced that to date the fund has paid out R37 Billion (R37 133 662 558.77) for 693 561 applications benefits 8.3 million (3 298 307) employees.  This is within the budgeted R40 Billion announced in April.

The Commissioner said “it is quite clear that these disbursements have made a real difference to millions of people dependent on the workers who received these cash injections.  As the Fund, it is an honour of us to have played this part and will do so until August 15, armed with learnings from the past three months”

FOR MORE INFORMATION REGARDING TERS SEE OUR COVID-19 GUIDE ON OUR WEBSITE

What to Do After TERS

It seems that the Department of Labour is not going to extend the Temporary Employee Relief Scheme (TERS), beyond June 2020, although many companies are not yet able to have their employees return to work. Many companies have not yet been paid for the June TERS as submissions have only really been possible since the implementation of new security measures were completed for the online system on Sunday 12 July 2020.

Please note that if you had submitted a claim before this date (for April, May or June) and it has not yet been processed, you must enter your Company Registration Number and update the system.  If you do not, none of the outstanding claims will be processed. 

Where employees have not yet been able to return to work or where they are working a very reduced short time, they are able to claim the Reduced Work Time Benefit.  This benefit was promulgated on 1 November 2019 and it is this legislation which allowed for the TERS benefit.

The Unemployment Insurance Act says in clause 12(1B):

A contributor employed in any sector who loses his or her income due to reduced working time, despite still being employed, is entitled to benefits if the contributor’s total income falls below the benefit level that the contributor would have received if he or she had become wholly unemployed, subject to that contributor having enough credits.

This means that employees will only be eligible if their earnings fall below the amount, they have been receiving from TERS and then they will only be given the difference between their actual earnings and the benefit from TERS.

Example: an employee earning R6 000-00 per month is currently working 2 days per week. 

  • His monthly earnings during short time will be:                                  R2 397.78 
  • His benefit from the UIF Fund for the month of July would be:         R3 657.12 
  • UIF would pay him the difference, i.e.                                                R1 259.34

If they earn more than R3 657.12 then they are not eligible for a benefit.

This benefit is only going to be truly beneficial for employees who are laid off and not earning at all as they will be able to claim the same benefits as they did from TERS. 

However, this benefit does use the UIF Credits.  This means that an employee claiming Unemployment, Ill Health or Dependents Benefits uses credits.  They get one day of UIF for every 4 days that they have contributed to a maximum benefit of 12 months UIF Payments.  In order to “earn” the full benefit an employee must have contributed for 48 months. However, if the employee enters a claim and then starts working again, they start earning back their credits.

The UIF benefit for retrenched employees will pay out the same amount, so there is no UIF benefit for being retrenched at this time.

How to Claim Reduced Working Time Benefits

Employers Responsibility

Step1:Employers must complete the UI19 form for their employees citing code 17 (Reduced Working Hours) as the reason for not earning.
Step2:Prepare a letter stating that the employee is not able to return to work or is earning short time as a consequence of the COVID 19 Disaster Management Act Lock Down.
Step3:Complete the Remuneration whilst in employment Form UI2.7.

Employee’s Responsibility – On line (ufiling)

Step1:Use Unemployment Benefits tab to claim Reduced Work Time On-Line
Step2:Use cover sheet of “other” to scan a UI 19, UI 2.7, a letter from the employer confirming a shutdown and copy of identity document under or email the supporting documents to online.BCP@labour. gov.za fax to E-Mail 0864397297
Please Note: The subject line for scan/email must be the employee’s identity number or the Case Number once one has been allocated.
Step3:Assessment to be conducted once claim is complete/correct/valid and applicant will be advised of the outcome via SMS/email.
Step4:If claim is approved, employee will be advised to submit a request for payment. Submit request for monies to be paid into a Banking Account, UI2.8
Step5:If further claims are required submit Continuation of Payment UI6A (COP).
Step6:Applicant is paid

Employee’s Responsibility Manual Claims

Step1:Download and complete the UI2.1 (application for Reduced Work Time and, UI 2.7 and UI 2.8 forms.
Step2:Attach the abovementioned forms, a letter from the employer confirming a shutdown and copy of identity document as well as a UI19 from the Employer.
Step3:Reason for termination code must be 17 (Reduced working hours)
Step4:Email all the attachments to the relevant province

MAILBOX FAX TO EMAIL NUMBER

OfficeEmail AddressFax Number
GautengGermiston.BCP@labour.gov.za086 439 7295
GautengJohannesburg.BCP@labour.gov.za086 439 7294
GautengPreotia.BCP@labour.gov.za086 439 7290
Kwa-Zulu NatalPetermari.BCP@labour.gov.za086 439 7296
Kwa-Zulu NatalDurban.BCP@labour.gov.za086 439 7297
Eastern CapeEastLondon.BCP@labour.gov.za086 439 7299
Eastern CapePortelizabeth.BCP@labour.gov.za086 439 7298
Western CapeCapet.BCP@labour.gov.za086 439 7300
Western CapeGeorge.BCP@labour.gov.za086 439 7301
North West ProvinceNorthWest.BCP@labour.gov.za086 439 7302
LimpopoLimpopo.BCP@labour.gov.za086 439 7303
MpumalangaMpumalanga.BCP@labour.gov.za086 439 7304
Free StateMpumalanga.BCP@labour.gov.za086 439 7305
Northern CapeNorthernCape.BCP@labour.gov.za086 439 7309

Alternatively, the employee can visit their nearest labour centre taking all the documentation with them.  More details are listed in the Electronic Claims Pamphlet which also outlines how to claim for ill health or unemployment benefits.

Remember that when employees die in service, their dependents are entitled to a benefit from UIF which is equal to the full 12-month benefit that they would have received if they had been unemployed.

A word of Caution:  Employees who have been claiming TERS and have tried claiming unemployment or maternity leave benefits are finding that they cannot submit a claim until the TERS claims have been finalised.  It may be best to wait until all the TERS claims have all been paid out before making application.

Please contact the office if you have any questions or require any assistance.

Downloads

BREAKING NEWS (2020/06/24)

TERS Application open for June 2020

The website has been opened for June applications for TERS Refunds.  This despite the fact that some April and May applications have not been approved.  In the latest information from the Department, we have been assured that the backlog is being attended to and that the systems reruns every 3 to 4 days.  We have seen movement on applications this week and the computer system does seem to be working more smoothly.

We are waiting for final information with regard to the closing dates for applications, but at this time new applications for TERS for April and May are still being accepted.  The sooner you apply, the sooner payment will be made.

For more information regarding TERS see our COVID-19 Guide on our website

Breaking News 2020/04/30

Department of Labour – TERS

The Department of Labour has recognised that the manner in which they have been paying out the benefit for TERS is at odds with the intention originally.

The FAQ issued today clarifies that an employee is entitled to their full benefit (in terms of the calculation as a percentage of salary of between 60% and 38% of salary up to a maximum benefit of R R6 638.40).

All those companies who have paid their employees less than their normal salary can now submit claims.  Those who did submit and were rejected will automatically be reassessed and payment will be made to the employer.

The calculation which applies to this is Scenario 2 in the pamphlet COVID 19 FAQ.

The FAQ can be downloaded here.