Category Archives: Covid-19

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

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

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

COVID-19 Lockdown

Every day is bringing us new information and processes to follow in terms of applying for assistance for companies who are experience business distress and how we can assist employees when we are unable to pay them full salaries, or indeed any salary.

Below is some of the new information that we have in this process.

TEMPORARY EMPLOYEE RELIEF FUND

Having had a long conversation with the call centre this morning we have established the following:

  1. We cannot force employees to take annual leave during the lockdown, it should be treated as special leave, but the special leave does not need to be paid.  The implication is that if staff would prefer to use their annual leave they can.  We have changed our letter format to suit.
  2. The Memorandum of Agreement was meant for Bargaining Councils and not for individual employers applying.  This means that:
    • You do not need to open a special banking account.
    • You do not need to do a proforma invoice attracting VAT.
    • The letter of authority is still necessary and the UIF reserves the right to do an audit, but this MOA does not need to be signed, although there might be another document later.
  3. The application of TERS is meant for employees who will be receiving no funds during the lockdown period and perhaps for some time after this.  There is a separate process for employees whose income is affected by a reduction in their working hours.  This definition does not include those employees who are still working a full day, but may, due to financial constraints, have had their salary cut by a percentage.
  4. Employees whose time has been reduced will receive a benefit even if their salary after reduced hours is more than the maximum benefit from UIF of R6,730.56 (I asked this question several times, so really hope the information is correct).
  1. To claim for UIF benefits for reduced time we are now able to use the same process as TERS, but to include in the leave payment column of the spreadsheet, the value of the payment made to the staff member.

At this stage we are unable to determine what payment the employee will receive

Please don’t let employees use the online system as this will utilise their UIF credits and payment may not be received any time soon.

TAX CONCESSIONS

A draft document has been posted on the SARS Website with proposed assistance to employers to assist them during this time.  There are basically two proposals:

  1. ETI Benefit:  the proposal is to extend the Employment Tax Incentive to cover all staff to the age of 65 whose income is below R6500-00 by allowing employers to deduct R500-00 from their PAYE and to increase the benefit for employees with less than 24 months service and who are below the age of 29 by R500.
  2. Allowing small and medium-sized companies (turnover below R50 million) to defer the payment of 20 per cent of their PAYE liability, without SARS imposing administrative penalties and interest for the late payment thereof.
  3. The deferred PAYE liability must be paid to SARS in equal instalments over the six month period commencing on 1 August 2020, i.e. the first payment must be made on 7 September 2020.

RETIREMENT FUNDING RELIEF

Responding to calls from Employers wanting relief from the cost of paying over Retirement funding during this period, the FSCA has responded to say that while the risk benefits need to be paid (life insurance, disability insurance, funeral cover etc), with a rule change, which they are going expedite as quickly as possible, companies will not need to pay over the investment portion of the Retirement Funding during this period.  The official communique from the FSCA is posted below.  Please contact your Retirement Fund Administrator for assistance.

We will inform you when the regulations have been passed into law.

Covid-19 Temporary Employer/Employee Relief Scheme (TERS)

The Department of Employment and Labour has made money available to companies who are experiencing difficulty paying staff as a consequence of COVID-19.  They will also pay benefits to employees who are ill as a consequence of COVID-19.  To streamline the process they will sign an MOA with the company and once information has been provided they will pay the company who can then reimburse the employees.

Unfortunately, the benefits remain the same, i.e. The salary benefits will be capped to a maximum amount of R17 712, 00 per month, per employee and an employee will be paid in terms of the income replacement rate sliding scale (38 % -60 %).  They have said that there will be a minimum amount of R3500-00 which is the current minimum salary.  This means that anyone earning above R17 712-00 will only be reimbursed at R6 730.56.

If you would like us to assist with the claiming process please contact the consultant you normally deal with or contact Debbie Mason here.

COVID-19 LABOUR LAW OPTIONS

We are having a number of conversations with our clients with regard to the effect that the effective global shut down has had on the Country and the world with regard to this virus and no doubt viruses to come in future years.  I cannot think of a business that is not going to be negatively affected by this, even the health industry as products shipped from China and Europe will be delayed, but those involved in travel and eventing will be the most seriously affected initially.

Below I have given a number of the frequently asked questions with the advice that is being given by the Department of Labour and the Legal Fraternity.

HEALTH AND HYGIENE

The Department of Labour has issued a directive in terms of our responsibility as employers in answer to the question of what our responsibilities to our employees are.

The Department of Employment and Labour has appealed to employers to use the prescriptions of the OHS Act of 1993 in relation to Coronavirus Disease 2019 COVID-19.

The OHS requires the employer to provide as far as is reasonably practicable, a safe working environment which is without risks to the health of all employees.

Current risk assessments need to be reviewed and updated taking into account the new hazards posed by exposure to COVID-19 in the workplace.

Employers who have not yet prepared for pandemic events are requested to prepare themselves for potentially worsening outbreak conditions.

The Department has developed a COVID-19 guideline which is based on infection prevention and occupational hygiene practices.

It focuses on the need for employers to implement the following measures:

Engineering controls:

Isolating employees from work-related hazards, installing high efficiency air filters, increasing ventilation rates in the work environment and installing physical barriers such as face shields to provide ventilation

Administrative controls:

Encouraging sick employees to stay at home; minimizing contact among workers, clients and customers by replacing face-to-face meetings with virtual communications e.g. conference calls, skype etc; minimising the number of workers on site at any given time e.g. shift work; discontinuing local and international travel; developing emergency communication plans, including a task team for answering worker’s concerns and internet-based communications; provide workers with up-to-date education and training on COVID-19 risk factors; training workers on how to use and wear protective clothing and equipment

Safe work Practices:

Provide resources that promotes personal hygiene e.g. no-touch refuse bins, hand soap, alcohol-based hand rubs containing at least 70% alcohol, promote regular hand washing

Personal Protective Equipment:

This includes the provision of gloves, goggles, face shields, face masks, gowns, aprons, coats, overalls, hair and shoe covers and respiratory protection.

Employers and workers should use this information to identify risk levels in the workplace and identify additional appropriate control measures. Additional guidance may be needed as COVID-19 outbreak conditions change.  In the event that new information about the virus and its impact is established, plans may need to be modified accordingly.

In the case of suspected exposure, contact the Coronavirus hotline in South Africa – 0800 02 9999

SICK LEAVE

The questions that are being asked of us are:

Does quarantine count as sick leave? 

If a doctor orders it then yes it does, but if a person voluntarily goes into isolation then it does not.  However, if the employer imposes quarantine on its employees, then that should be treated as special paid leave (not annual leave).

If an employee catches Coronovirus at work will it be a WCA Claim?

If the employee’s job is to work with affected or potentially affected people and it was acquired during the course of his work, then it will be a WCA claim.  In other circumstances, we will have to allow the Commission to decide.  It is going to be difficult with certainty to determine where the infection came from.

All other infected and ill employees will be entitled to normal sick leave.

ALTERNATIVE WORKING ARRANGEMENTS

Many staff are requesting permission to work at home, particularly as schools have closed and alternative childcare may not be available. 

How do I monitor staff who want to work from home and what do I do if they cannot work more than 3 or 4 hours a day? 

Companies are going to have to look at this very seriously and improve their monitoring systems so that they can measure work done.  Maybe they need to agree an hourly rate for work done during this period.  It is going to have to be on a case by case basis.

What do I do with staff who cannot work from home?

They need to come to work or take annual or unpaid leave.  We will have to monitor what happens to public transport, but if hygiene factors are looked after, there should not be a problem with continuing to work.

What do I do with staff who choose not to come to work (childcare, immune system compromise, self-isolation etc.)

We have suggested to our clients that they have discussions with their staff about the hygiene factors and the real risks of the virus, but also about the effect that it is going to have on their businesses and seriously introduce the possibility of short time or requiring employees to take some of their annual leave.  They also need to discuss the “no work no pay” principle for people who choose for whatever reason to not come to work.

OPERATIONAL REQUIREMENTS

For many of our clients, they literally have little or no business for the length of time that the global shut down is in place.  The following questions have been asked:

Can I lay-off staff or ask them to take unpaid leave?

The discussion is around what the Department of Labour calls Reduced Working Hours.  There are no guidelines to this in the Basic Conditions of Employment, but employees can apply for UIF benefits whilst on a Reduced Working Hours (Short Time) arrangement.  This is seen as an alternative to retrenchment and the consultation with staff would be in terms of how this could best be arranged.  Each Company would have to look at their particular circumstances.  To be fair and in line with Bargaining Council Agreements, reduced working hour arrangements must be applied to everyone in the business and there should be 5 days notice of the implementation of short time.

Can I retrench?

If the business requires it then you can, but you need to follow the process outlined in section 189 of the Labour Relations Act.  This requires consultation with staff on how to select employees to be retrenched, timing, severance packages etc.  Part of the process is to look at alternatives to retrenchment such as reduced working hours and to ask for volunteers.  It is a difficult process and really should only be considered if the company was contemplating retrenchments prior to the virus outbreak.

LABOUR COURT AND CCMA

We have received information that the Labour Court and the CCMA will effectively be closed.  The CCMA will not be doing any face to face meetings between 18th March 2020 and 14th  April 2020. They will only accept e-mailed applications for disputes and have postponed all arbitrations.  They will do telephonic conciliations where possible.  They will assist with large retrenchments, but only if it is held at the company premises and they can be assured that health and hygiene arrangements are adequate.  Otherwise, they are closed.

CONCLUSION

I think it is important not to panic.  80% of infected people will be mildly affected and have very light symptoms.  It’s the 20% who become critically ill that will overload the health system.  We need perhaps to have separate conversations with people who have hypertension, diabetes, HIV, respiratory conditions, cancer, cardiovascular disease, smokers and people with autoimmune conditions and find specific ways to protect them.

Particular advice:  Wash your hands when you go into a meeting and when you leave a meeting. Sterilize your phone with an alcohol-based sanitiser, don’t shake hands, hug or kiss anyone in the workplace.

A good source of information is Alanah Shaikh’s Ted Talk on Covid-19.