South Africa: Coronavirus (COVID-19): Impact of the Disaster Management Regulations on Employers 

March, 2020 - Lauren Salt

At their core, the Regulations in terms of the Disaster Management Act, 2002 issued and brought into operation yesterday, 18 March 2020, outline the responsibilities of all government departments, the release and allocation of resources, and the conditions under which liquor industry may function. In the wake of the coronavirus (COVID-19) epidemic being declared a national state of disaster, the Regulations are intended to contain the spread of the virus. We deal with some of the key aspects of the Regulations below.

The Regulations intend to prevent and prohibit gatherings, which are defined broadly to include “any assembly, concourse or procession of more than 100 persons, wholly or partially in open air or in a building or premises.” In addition, the assembly of more than 50 persons at premises where liquor is sold and consumed is prohibited altogether. There has been no clarification until now as to what a “gathering” entails. This definition, while providing slightly more guidance, does not provide any definitive answer. The application of the prohibition on a gathering of 100 people has seemingly been interpreted differently. The Department of Labour, however, has indicated that queues at their labour centres will be limited to 100 people. This number seems to not include employees. Allegedly, government has confirmed that the 50-person limit in restaurants includes employees and patrons. This has yet to be formally confirmed or denied by government. At this stage, and with the developing circumstances and release of information, we suggest that any employer who is looking to comply seeks legal advice.

The Regulations also take a tough stance on the sale, dispensing and transportation of liquor. With immediate effect, all establishments (including liquor stores, bars, shebeens, restaurants and clubs) that sell liquormust closeat 18h00 on weekdays and Saturdays, and at 13h00 on Sundays and public holidays. They can only open at 09h00 the next morning. Again, government allegedly commented that the closure relates to limitation on the sale and consumption of liquor and not the closure of the establishment. Government has yet to confirm or deny this. We suggest that, in the absence of formal confirmation, businesses should apply a cautious approach.

Finally, the Regulations delineate numerous offences and penalties. Anyone who intentionally exposes another person to COVID-19 may be prosecuted for an offence, including assault, murder or attempted murder.

Anyone who:

  • convenes a gathering as defined;
  • permits more than 50 persons at premises where liquor is sold and consumed;
  • hinders, interferes with, or obstructs an enforcement officer;
  • opens a school or partial care facility;
  • contravenes the Regulations pertaining to emergency procurement procedures;
  • intentionally misrepresents that they or that someone else has the COVID-19;
  • publishes any statement through any medium with the intention to deceive anyone about the COVID-19, someone’s COVID-19 infection status, or any measure taken by government to address the COVID-19;

is also guilty of an offence and, if convicted, is liable to pay a fine and/or to be imprisoned for up to six months.

The impact of these Regulations, particularly on those in the hospitality and liquor industries, could be grave given the need to reduce working hours and a reduction in revenue occasioned by the restrictions is likely to materialise. We suggest that prior to closing their doors entirely, employers in distress consider options such as temporary lay-offs, the use of annual leave by agreement and accessing the Temporary Employee Employer Relief Scheme (“TERS”), amongst others. The TERS is administered jointly by the Commission for Conciliation, Mediation and Arbitration and the Unemployment Insurance Fund (“UIF”).

The Minister of Labour addressed NEDLAC EXCO on 16 March 2020 (summary available here). The speech has been captured on the government website as follows –

“Nxesi said to assist the distressed companies, a period of reprieve will be considered in order for companies not to contribute to the Unemployment Insurance Fund (UIF). He said the Funds Temporary Employer/ Employee Relief Scheme will be used to ensure that workers are not laid off.

In instances where companies decide to close for a short period as a precautionary measure, the short term UIF benefit will kick in. If a company contemplates a short term shut down, they are required to inform the Unemployment Insurance Fund. Our team will visit these companies to provide assistance with the processing of the claims, said Nxesi.”

The TERS provides an alternative to retrenchment whereby the employment relationship is suspended while employees undergo a skills training programme. The skills training programme will be linked to the employer’s business. Essentially, this means that the employees continue to be employed by the employer but they are released from their normal duties and responsibilities in order to enable them to attend the skills training which has been agreed upon by the parties. There can also be an agreement between the parties to combine participation in the TERS with short time.

The skills training programme may last for up to a period six months and is coordinated by the relevant Sector Education and Training Authority. Where the training programme is combined with short time, this may extend the period of the TERS.

So, before hanging up their aprons and storing away their wine glasses, employers affected by these Regulations should carefully consider their options with a view of permanently keeping their doors open.

Lauren Salt, Executive Employment, [email protected], +27 84 509 6494

Jessie Moore, Candidate Attorney Employment, [email protected], +27 71 125 6135

 

COVID-19, also known as the Coronavirus, is an infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) that was declared a pandemic by the World Health Organization on 11 March 2020. The disease has since been reported in over 190 countries.

 

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