FOR SA and the outstanding legal team that we have been working with have made a close examination of the Regulations and Directions promulgated by Government inasmuch as they affect the religious community in their “Places of Work”. This FAQ document details some of the frequently asked questions in this regard, and FOR SA’s interpretation of the applicable Regulations and Directions. Please note that the document is intended to serve as a Guideline only, and FOR SA cannot be held legally liable for reliance thereon. It remains the responsibility of every church or religious organisation to familiarise themselves with the Regulations and Directions that apply from time to time, and to obtain legal advice particular to them.
By all means freely distribute the FAQ document we have produced to your constituents.
View PART A on our Website
FREQUENTLY ASKED QUESTIONS:
PART B:
THE IMPLICATIONS OF (AMENDED) ‘ADJUSTED LEVEL 3’ REGULATIONS’
(PROMULGATED ON 1 FEBRUARY 2021)
FOR RELIGIOUS ORGANISATIONS AS PLACES OF WORK
(9 February 2021)
By Freedom of Religion South Africa (FOR SA)
(in consultation with a broader team of advocates and attorneys)
*Disclaimer – FOR SA accepts no liability for any reliance placed on this document. Readers always bear the responsibility of reading the latest regulations and directives for themselves to verify that the information reflected in this document is still applicable.
On 29 December 2020 South Africa moved to ‘Adjusted Level 3' in light of a second wave of COVID-19 infections. On 11 January 2021, further Regulations were promulgated. On 1 February 2021, the current (amended) Adjusted Level 3 Regulations were promulgated. A summary of the current Regulations is available here.
The purpose of this document (comprising of a separate PART A, and PART B) is to assist churches and other religious organisations in their understanding and implementation of these Adjusted Level 3 Regulations issued in respect of religious meetings (see PART A), as well as the Consolidated Directions on Occupational Health and Safety Measures of 28 September 2020 (“the Consolidated Directions”) issued in respect of workplace gatherings (PART B).
WORKPLACES:
Q: Can the church office continue to operate at Adjusted Level 3?
A: Yes. Regulation 45(1) is clear that all businesses may operate (except those listed in Table 2, which do not include religious organisations that are often also places of work). Importantly, in terms of Regulation 45(3), all employers are required to adhere to the relevant health protocols and social distancing measures required by Directions, as well as occupational health and safety measures required in Directions.
Q: “Must” the church office re-open and start operating again?
A: No. Regulation 45(1) clearly states that “[b]usinesses may operate except for those set out in Table 2”. Ultimately, therefore, it is up to every church or religious organisation to decide when they will open their offices again.
Q: Can all employees return to the office?
A: In terms of Regulation 34(8)(a), employers should enable employees to work from home or minimise the need for them to come into the workplace. Furthermore, Table 2 of the Regulations states that all persons who are able to work from home must continue to do so. However, employees may work outside of their homes (including therefore from the office), and travel to and from work, and for work purposes, subject to the following conditions:
- Strict compliance with health protocols and social distancing measures; and
- The return to work needs to be done in a manner that avoids and reduces the risk of infection; and
- The work should not be listed in Table 2’s list of specific exclusions.
Q: Can we have staff, or other, meetings at the office?
A: Yes, in terms of Regulation 36(5) “gatherings” at a workplace for work purposes are permitted, subject to strict adherence to all health protocols and social distancing measures. This means that staff meetings and other work meetings can take place at the office.
Q: Can pastors / religious workers provide people with spiritual counselling?
A: Yes, a core function of pastoral work is to counsel people – and they should be able to do so at the church office, or if their office is at home, from their ‘home office’.
However, it is important to note that in terms of the Regulation 36(3)(b) “social gatherings” remain prohibited. A gathering of people at a house may attract the attention of neighbours or the Police, who may suspect that a “social gathering” rather than a work-related meeting is taking place and find reason to investigate. Unless you are then able to prove that your home is indeed your workplace, and that the meeting is for work purposes, the “gathering” may be viewed as an illegal gathering. In the circumstances, religious leaders / workers are best advised to have all meetings (including meeting with other pastors / leaders, and/or counselling meetings) at the office of the church or religious organisation. Another option is to go to a restaurant or coffee shop, as these are allowed to operate under the current Regulations.
Note: The President, under the previous Level 3, said religious workers are essential workers. However, it is uncertain if they are recognised as such under the current (amended) Adjusted Level 3. That being said, the only difference this recognition of religious workers as essential workers would make at present, is that it would allow religious workers to move around during curfew (if for e.g., someone is passing / has passed away during curfew).
Q: What must we do, from an administrative and practical point of view, to get the office ready?
A: There are some very specific things that, by law, a religious organisation has to put in place, before the workplace will be COVID-ready and any employee/s can return to work.
Although, legally therefore, it is possible for the office to re-open and employees to return to work, the question is whether practically your church or organisation is ready and is able to comply with all the legal requirements set out in the Regulations and the Consolidated Directions.
Q: From an employment law perspective, what administrative measures must an employer take?
A: In terms of the Consolidated Directions, every employer must:
- Do a risk assessment (Clause 3(1)(a)).
- Based on that risk assessment develop a plan (“the risk assessment plan”), outlining the protective measures in place for the phased return of its employees (Clause 3(1)(b)) – see the answer to the question below for more information about the risk assessment plan’s content.
- Consult with any trade union representative, and any health and safety committee and/or representative on its risk assessment and resulting plan (Clause 3(1)(c)).
- Make this plan available for inspection to the health and safety committee and/or representative (Clause 3(1)(d)).
- Require employees to disclose whether they have any health issues, co-morbidities or conditions contemplated in the definition of vulnerable employees[1] . If yes, the employer needs to take special measures to mitigate their risk of contracting COVID-19, and to facilitate either their safe return to work or their working from home.
- Notify all employees of the Consolidated Directions on Occupational Health and Safety, and how it intends to implement it (Clause 4(1)(c)).
- Notify all employees that if they are sick and/or have symptoms, they must stay home and take paid sick leave (Clause 4(1)(e)).
- Appoint a manager as a COVID-19 compliance officer to:
- oversee the implementation of its risk assessment plan;
- oversee the adherence to health and safety measures;
- address employee concerns and to keep them informed (Clause 4(1)(f)).
- Ensure that the measures in the Consolidated Directions and its risk assessment plan are strictly complied with through monitoring and supervision (Clause4(1)(g)).
- As far as practicable, minimise the number of workers at the workplace at any time through rotation, staggered working hours, shift systems, remote working or similar measures (Clause 4(1)(h)).
- Take measures to minimise contact between workers, and workers and the public (Clause 4(i)).
- Provide workers with information that raises awareness, including where to go for testing and screening (Clause 4(j)).
- If a worker has been diagnosed, they must inform the National Institute for Occupational Health (the report can be made to OHSworkplace@nioh.ac.za or via the online platform at https://ohss.nioh.ac.za/) and the Compensation Commissioner. They must also investigate the cause, review their risk assessment, determine the need to temporarily close the affected work area for decontamination after consultation with the health and safety committee / representative, and give administrative support to contact-tracing by the Department of Health. (Clause 4(k)).
- Note: Employers of ten (10) or less people are required to:
- Develop a basic plan for the phased return of its employees (taking into account those which are able to work remotely, those who are over sixty (60) years and those who have co-morbidities) (Clause 12(a)).
- Arrange the workplace so as to ensure that employees are at least 1.5 meters apart, or if not practicable, to place physical barriers between them (Clause 12(b)).
- Ensure that employees that present with symptoms are not permitted to work (Clause 12(c)) and then immediately contact the relevant provincial inspectorate for instruction and direct the employee to act in accordance with those instructions (Clause 12(d)).
- Note: Employers of more than fifty (50) people are required to:
- Submit a record of their risk assessment together with a written policy concerning the protection of the health and safety of their employees from COVID-19 to both their health and safety committee as well as the Department of Employment and Labour, within twenty-one (21) days of 1 October 2020 (Note: Submission must be made to the Provincial Chief Inspector at https://www.labour.gov.za/About-Us/Ministry/Pages/IES0320- 7398.aspx) (Clause 4(1)(a)).
- Submit the following categories of data to the National Institute for Occupational Health in the manner required by the Department of Health’s Guidelines (which can be found at https://www.nioh.ac.za/wp-content/uploads/2020/08/Workplace-Data-Submission-Guideline_19Aug20.pdf):
- Each employee’s vulnerability status for serious outcomes of a COVID-19 infection (Clause 4(2)(a)(i)) which is to be submitted once (Clause 4(2)(b)).
- Details of the COVID-19 screening of employees who are symptomatic (Clause 4(2)(a)(ii)) which must be submitted as soon as possible before Tuesday every week for the previous week (Clause 4(2)(b)).
- Details of employees who test positive (Clause 4(2)(a)(iii)) which must be submitted as soon as possible before Tuesday every week for the previous week (Clause 4(2)(b)).
- The number of employees identified as high-risk contacts within the workplace if a worker has been confirmed as being positive (Clause 4(2)(a)(iv)) which must be submitted as soon as possible before Tuesday every week for the previous week (Clause 4(2)(b)).
- Details on the post-infection outcomes of those testing positive, including the return to work assessment outcome (Clause 4(2)(a)(v)) which must be submitted as soon as possible before Tuesday every week for the previous week (Clause 4(2)(b)).
- Inform their employees of the above information submitted and advise them of its adherence to the Protection Of Personal Information Act, 2013 (POPI).
- May also submit data to an employer association in the circumstances set out in Clause 4(2)(d).
Q: Do we need a COVID-19 compliance officer?
A: Yes. From an administrative perspective, the person “in control of” the religious organisation must designate a COVID-19 compliance officer (Regulation 46(1)). The Compliance Officer’s job is to:
- Develop a plan (“the workplace plan”) to ensure that the workplace meets the standards of health protocols, adequate space for employees and social distancing measures for the public and services providers (Regulation 46(1)(b). This plan must contain the Compliance Officer’s details and must be retained for inspection (Regulation 46(1)(c)).
- Oversee the implementation of the workplace plan (Regulation 46(1)(a)(i)).
- Oversee strict adherence to the standards of hygiene and health protocols relating to COVID-19 at the workplace (Regulation 46(1)(a)(ii) and Clause 9(2)(i)).
- Oversee the implementation of the risk assessment plan, which plan must contain the following information: (see Clause 4(1)(f)(i)) and Clause 3(2) of the Consolidated Directions)
- date the workplace will open and its hours of opening;
- which employees are permitted to return to work;
- which employees are required to work from home;
- what the plans and timetable for the phased-in return of their employees to the workplace are;
- identify vulnerable employees (those employees with known or disclosed health issues or co-morbidities or any other condition that may place them at a higher risk of complications or death if infected with COVID-19; or any employee over sixty (60) years of age who is at higher risk of complications or death if infected);
- ways of minimising the number of workers at the workplace at one time;
- what workplace protective measures are required to be taken in terms of the Directive and any sectoral guidelines;
- the measures for the daily screening of employees, contractors and visitors to the workplace;
- the details of the COVID-19 compliance officer;
- a procedure to resolve any issues that may arise from the employee exercising the right to refuse to work (see the question describing the circumstances in which an employee can do this below). - We also recommend that the person “in control of” the religious organisation, or the Compliance Officer, confirms with the organisation’s insurer whether the organisation is insured against any legal claims by employees / congregants / members of the public who may contract COVID-19 as a result of being in/or the organisation’s premises or in contact with its employees/leaders. (From a legal risk point of view, organisations may also want to consider having their employees sign an indemnity in this regard).
Q: When can an employee refuse to work?
A: According the Consolidated Directions:
- An employee can refuse to work when circumstances arise which, with reasonable justification, appear to that employee or to a health and safety representative to pose an imminent and serious risk of their exposure to COVID-19 (Clause 14(1)). This applies, irrespective of whether the employee has used / exhausted all other applicable external / internal procedures (Clause 14(4)).
- The employee is then required to notify the employer (either personally or via the health and safety representative) as soon as reasonably practicable, of his/her refusal to work and the reason for his/her refusal (Clause 14(2)). Should there be a dispute about the aforementioned being contravened, the employee may refer the dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), or an accredited bargaining council for conciliation and arbitration (Clause 14(8)).
- After being notified, the employer must:
- Consult with the Compliance Officer and health and safety committee / representative and thereafter endeavour to resolve any issue that may arise from the employee’s exercise of the right to refuse to work (Clause 14(3)(a)).
- If the matter fails to be resolved internally, within 24 hours notify the inspector (https://www.labour.gov.za/Contacts/Provincial-offices) and advise the employee and all other parties involved of such notification (Clause 14(3)(b)).
- Comply with any prohibition issued by the inspector (Clause 14(3)(c)).
- No employee may be dismissed / disciplined / prejudiced / harassed for refusing to work (in circumstances which, with reasonable justification, appear to that employee or to a health and safety representative, to pose an imminent and serious risk of their exposure to COVID-19) (Clause 14(7)).
- Note: No one may benefit from / promise any benefit to a person for not exercising their right to refuse to work (Clause 14(5)) and neither may anyone threaten any action against a person, because that person has refused to work (in circumstances which, with reasonable justification, appear to that employee or to a health and safety representative, to pose an imminent and serious risk of their exposure to COVID-19) (Clause 14(6)).
Q: What are the rules about wearing masks?
A: In terms of Regulation 34(5), an employer may not allow any employee to enter the premises if they are not wearing a face mask. Neither should the employer allow the employee to perform any of his/her duties without a face mask on.
Furthermore, in terms of the Consolidated Directions, employers are required to:
- Provide each of their employees with a minimum of two (2) cloth masks (that comply with the Recommended Guidelines Fabric Face Masks found at
https://www.thedtic.gov.za/wp-content/uploads/Updated_Recommended_Guidelines_Fabric_Face_Masks_May2020.pdf) for the employee to wear while at work as well commuting to and from work (Clause 8(2)). - Ensure that every employee is informed, trained, instructed and supervised as to the correct use of the cloth face mask (Clause 8(4)).
- Provide the specific PPE which the risk assessment may indicate is required (Clause 8(5)).
- Require members of the public (including suppliers), to wear masks while they are inside the workplace (Clause 9(2)(f)).
Q: What social distancing measures are employers required to adopt?
A: In terms of Regulation 34(8), all employers are required to adopt certain measures to promote physical distancing of employees. These measures include:
- Allowing employees to work from home.
- Minimising the need for employees to be physically present at the workplace.
- Providing adequate space.
- Restricting face-to-face meetings (which in terms of Regulation 36(5) and Regulation 84(5) are allowed, subject to strict health protocol and social distancing measures).
- Adopting special measures for employees with health issues that may place them at a higher risk of complications or death if they contract COVID-19.
- Adopting special measures for employees over sixty (60) years of age as they are at a higher risk of complications or death if they contract COVID-19.
Furthermore, in terms of the Consolidated Directions, employers are required to:
- Arrange the workplace in a way that ensures minimal contact between workers, and that as far as practicable, there is a minimum of 1.5 meters between workers while they work. (Depending on the circumstances of the workplace, the minimum distance may need to be greater, but reducing the number of workers present may assist in achieving the required social distance.) (Clause 5(1) and (2)).
- In circumstances where it is not practicable to arrange workstations 1.5 meters apart, employers are required to:
- Arrange physical barriers between/on workstations to form a solid physical barrier between workers (Clause 5(3)(a)).; or
- Regularly check the websites of the Department of Health (https://www.health.gov.za/), the National Institute of Communicable Diseases (www.nicd.ac.za/), and the National Institute for Occupational Health (https://www.nioh.ac.za/) whether any specialised PPE is required given the nature either the workplace or the employee’s duties (Clause 11), and if so required, to supply the employees with PPE which is appropriate based on the risk assessment, and which must be supplied free of charge (Clause 5(3)(b)).
- Ensure that social distancing measures are implemented through supervision (Clause 5(4)).
- Ensure that members of the public who are queuing outside the workplace are maintaining a distance of 1.5 meters from each other (Clause 9(2)(g)).
Q: What screening measures are employers required to adopt?
A: The Consolidated Directions require that:
- Every employer must screen their employees for any of the following symptoms when they report for work: cough; sore throat; shortness of breath / difficulty breathing; loss of taste / smell; fever; body aches; redness of eyes; nausea; vomiting; diarrhoea; fatigue; weakness / tiredness (Clause 6(1)(a)).
- Employers must also require their employees to inform them immediately if they start to experience any of these symptoms while at work (Clause 6(1)(b)).
- Comply with any guidelines issued by the Department of Health in respect of symptom screening and (if required to do so) medical surveillance and testing (Clause 6(2)).
In order to comply with the above, it is recommended that the Compliance Officer prepares an attendance register, including a symptoms assessment, to be completed by every employee on attendance at the workplace. These records need to be kept for a period of at least six (6) months.
Q: What happens when an employee presents with COVID-19 symptoms?
A: If an employee presents with COVID-19 symptoms or tells an employer that they have any of the symptoms, the employer must:
- Not permit the employee to enter the workplace (Clause 6(3)(a)).
- If the worker is already at work, immediately:
- Isolate the worker and provide them with a surgical mask and arrange for them to be transported to a public health facility in a manner that does not place other people at risk of having to self-isolate or to go for medical examination or testing (Clause 6(3)(b)(i)). (In practice, we understand that employees generally return home and self-isolate, from where they contact their medical practitioner for possible referral for medical testing).
- Assess the risk of transmission, disinfect the area and the worker’s workstation, undertake contact tracing, refer those workers who may be at risk for screening and take any other appropriate measures to prevent possible transmission (Clause 6(3)(b)(ii)).
- Place the employee on paid sick leave (in terms of section 22 of the Basic Conditions of Employment Act, 1997), or, if the employee’s sick leave is exhausted, apply for an illness benefit with the COVID-19 Temporary Employer Relief Scheme (“TERS”) (Clause 6(3)(iii)).
- Take steps to ensure the employee is not discriminated against because they tested positive for COVID-19 (Clause 6(3)(iv)).
- If there is any evidence that the worker contracted COVID-19 at work, lodge a claim for compensation in terms of the Compensation for Occupational Injuries and Diseases Act, 1993 (COIDA).
Q: When can an employee who tested positive for COVID-19 return to work?
A: In terms of Clause 6(4) of the Consolidated Directions, an employer may only allow the employee to return to work:
- Without requiring a viral test if the employee has completed the mandatory ten (10) days of isolation from the onset of symptoms (Clause 6(4)(a)).
- If the employer ensures that personal hygiene, the wearing of masks, social distancing and coughing etiquette is strictly adhered to by the employee (Clause 6(4)(b)).
- If the employer closely monitors the employee for symptoms after they return to work (Clause 6(4)(c)).
- If the employee, upon returning to work, wears a surgical mask (which is a Class A medical device (3-ply mask) categorised by the South African Health Products Regulatory Authority) for twenty-one (21) days from the date of diagnosis (Clause 6(4)(d)).
Q: What happens when an employee was in contact with another employee diagnosed with COVID-19?
A: In terms of Clause 6(5) of the Consolidated Directions the employer must assess the employee’s exposure in accordance with the Department of Health’s Guidelines (https://www.nioh.ac.za/wp-content/uploads/2020/08/V5-Guidelines-for-symptom-monitoring-and-management-of-workers-for-COVID_19_19aug20.pdf) to ascertain whether the exposure carries a high or low risk of transmission between workers.
If there is a low risk exposure, the employer may permit the employee to continue working using a cloth mask and must monitor the employee’s symptoms for ten (10) days from the first contact (Clause 6(6)).
If there is a high risk exposure, the employee must remain in quarantine for ten (10) days for which time the employer must place them on paid sick leave, and if the employee remains asymptomatic, they do not have to get tested before coming back to work after their quarantine (Clause 6(7)).
Q: What are the practical things that need to be in place before the workplace is COVID-ready?
A: In terms of the Consolidated Directions, every employer must:
- Ensure that there are sufficient quantities of hand sanitizer at the workplace’s entrance and in the workplace itself (based on the number of employees or other people who access the entrance) (Clause 7(2)(a) and Clause 9(2)(h)).
- Supply every employee who works away from the workplace (other than those who work from home) with hand sanitizer (Clause 7(2)(b)).
- If the employee interacts with the public, ensure that there is a sufficient supply of hand sanitizer at the employee’s workstation – both for the employee and the member of the public with whom the employee is interacting with (Clause 7(3)).
- Ensure that all work surfaces and equipment is disinfected before work begins, disinfected regularly during the working period, and disinfected after work ends (Clause 7(4)(a)).
- Ensure that all areas such as lavatories, common areas etc. and shared objects such as door handles, electronic equipment etc. are regularly cleaned and disinfected (Clause 7(4)(b)).
- Ensure that biometric systems are either disabled or made COVID-19-proof (Clause 7(4)(c)).
- Ensure that there are adequate facilities for the washing of hands with soap and clean water, and that only paper towels are provided for the drying of hands – fabric towels are expressly prohibited (Clause 7(5)(a) and (b).
- Require employees to wash and sanitize their hands regularly while at work (Clause 7(5)(c)).
- Instruct employees that interact with the public, to sanitize their hands between each interaction with a member of the public (Clause 7(5)(d)).
- Ensure that surfaces that employees and members of the public come into contact with are routinely cleaned and disinfected (Clause 7(5)(e)).
- Keep the workplace well ventilated either by natural or mechanical means, in order to reduce the COVID-19 viral load (Clause 10(a))
- Ensure that the vents do not feed back in through open windows (Clause 10(e)).
- Ensure that ventilation filters are cleaned and replaced by a competent person and in accordance with the manufacturer’s instructions (Clause 10(f)).
- Where reasonably practicable, have an effective local extraction ventilation system with High-Efficiency Particulate Air filters that: have been assessed to function effectively, are regularly cleansed and which do not recirculate the air (Clause 10(b)).
Only after all of these things have been done, will a workplace be COVID-19 ready and may employees return to work.
Q: What measures do we need to take if the public interacts with our church office?
A: In terms of the Consolidated Directions every employer must:
- Determine the floor area of the workplace in square meters in order to determine the number of people that may be inside the workplace at any given point in time with sufficient space available (Clause 9(2)(a)).
- Arrange the workplace in such a way as to ensure that there is a distance of at least 1.5 meters between employees and members of the public (or between members of the public themselves) (Clause 9(2)(b)).
- Put in place physical barriers at counters or provide employees with face shields or visors (Clause 9(2)(c)).
- Undertake symptom screening measures of people (other than its employees) who enter the workplace (Clause 9(2)(d)).
- Display notices advising people entering the workplace (other than its employees) of the precautions they are required to observe while in the workplace (Clause 9(2)(e)).
Q: Can employees who do not work from the office, but from home, have work-related meetings at their house?
A: If the employee’s office is at their house, and that is their place of work, in terms of the Regulations, then there should not be an issue with having a “gathering” at his/her house for work purposes, subject however to the very same strict social distancing and health protocols that apply to other workplaces as set out in the Regulations.
Note: Because “social gatherings” remain prohibited at Level 3 however, a gathering of people at a house may attract the attention of neighbours or the Police, who may suspect that a “social gathering” rather than a work-related meeting is taking place and find reason to investigate. Unless you are then able to prove that your home is indeed your workplace, and that the meeting is for work purposes, the “gathering” may be viewed as an illegal gathering. In the circumstances, employees are best advised to have all meetings (including meeting with other pastors / leaders, and/or counselling meetings) at the office of the church or religious organisation.
Q: May the restaurant / coffee shop at the church re-open?
A: In terms of Regulation 36(15) restaurants are open, with fifty (50) people allowed to eat together at an indoor restaurant, and a hundred (100) people at an outdoor restaurant. Or, if the restaurant is too small to accommodate these numbers with 1.5 meters social distancing between each person, the number is limited to 50% of the venue’s capacity.
END.
9 February 2021
[1] Defined in Clause 1 as any employee with known or disclosed health issues or comorbidities or any other condition that may place them at a higher risk of complications or loss of life if infected with COVID-19; or anyone over 60 years of age who is at higher risk of complications or loss of life if infected.
