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 B on our Website
FREQUENTLY ASKED QUESTIONS:
(updated as at 14 July 2020)
PART A:
THE IMPLICATIONS OF ‘LEVEL 3’ FOR CHURCHES AND RELIGIOUS ORGANISATIONS IN THE WORKPLACE
By Freedom of Religion South Africa (FOR SA)
(in consultation with a broader team of advocates and attorneys)
From 1 June 2020, churches and other religious organisations are allowed (subject to certain strict conditions) to re-open both for work, and for worship. The right and opportunity to “self-regulate”, clearly comes with a responsibility to proceed with great diligence and caution. Every effort has to be made to comply with the necessary legal obligations and protocols, to prevent unnecessary exposure and risk of members and the public at large.
It is important that members and congregants understand that each one of us has a responsibility to adhere to the legal obligations and protocols, to prevent the unnecessary spreading of the virus. Ultimately, however, the responsibility rests on religious leaders and/or persons in charge of religious organisations, to ensure full compliance. Failure to comply exposes the religious organisation and its leaders to legal risk in the form of criminal charges and/or civil claims.
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 the Level 3 Regulations and Labour Directives issued in respect of the workplace (see PART A), and the Directions issued in respect of religious gatherings (PART B). When the Regulations for tertiary education are published, we will also prepare a guideline for bible schools.
Note that this document does not in any way replace, or address all the legal requirements arising from, the Level 3 Regulations, Labour Directives and Directions in respect of religious gatherings. It thus remains imperative for every church and religious organisation to familiarise themselves with the Level 3 Regulations, Labour Directives and Directions in respect of religious gatherings (and any other similar notices that Government may issue), and to ensure legal compliance with every aspect thereof.
Background:
On 28 May 2020, the Minister of Cooperative Governance and Traditional Affairs issued Regulations for Alert Level 3, applying nationally from 1 June 2020 (“the Level 3 Regulations”). The effect of the Regulations is that all businesses and institutions, except those specifically mentioned in Table 2 of the Level 3 Regulations, may commence operations (although all persons who are able to work from home, must still do so).
This means that at Level 3, churches and other religious organisations are able to start operating, and that employees are permitted to - in phases, and subject to strict compliance with health protocols and social distancing measures - return to the office. Employees are also allowed, in the course of carrying out their work responsibilities, to travel between provinces, metropolitan areas, districts and hotspots – provided however they are in possession of a Form 2 permit issued by their employer. For some Frequently Asked Questions with regards to what this means for churches and other religious organisations as places of work, see PART A hereof.
In addition to the above regulations in respect of the workplace (i.e. to the extent that the church or religious organisation has an office, and/or persons in its employ), the COGTA Minister on 28 May 2020 also issued Directions in respect of places of worship (i.e. to the extent that religious gatherings take place at the church or religious organisation). These Directions, likewise, apply nationally from 1 June 2020. For some Frequently Asked Questions with regards to what the Directions mean for churches and other religious organisations as places of worship, see PART B hereof.
*Note: FOR SA has updated this document to reflect the various amendments to the Level 3 Regulations and Directives up until 14 July 2020.
PART A: PLACE OF WORK
Q: Can the church office re-open and start operating again?
A: Yes. While the Level 4 Regulations stated that religious buildings must remain closed (Clause 24(1)), that restriction has been removed in the Level 3 Regulations. Also, in terms of the Level 3 regulations, every sector can return to work except those specifically mentioned under “specific economic exclusions” (Table 2: Alert Level 3). These “specific economic exclusions” do not include the religious sector in any way.
Q: “Must” the church office re-open and start operating again?
A: No. The Level 3 Regulations state that “businesses and other institutions may operate except those set out in Table 2”. Ultimately, therefore, it is up to every church or religious organisation to decide when they will open up again.
Q: Can all employees return to the office?
A: The Level 3 Regulations state that, as a starting point, 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 under Alert Level 3, subject to the following conditions:
(Table 2: Alert Level 3).
Q: “Must” all employees return to the office?
A: Again, as a starting point, all persons who are able to work from home must (continue) to do so. In terms of the law, however, if an employer requires an employee to work from the office, and has provided all relevant instruction, health and safety protocols and personal protective equipment (PPE) to safeguard employees, an employee has to have a “reasonable justification” based on objective criteria, to not attend at work. This situation is fully canvassed in Clauses 48 to 56 of the Consolidated COVID-19 Direction on Health and Safety in the Workplace issued by the Minister of Employment and Labour on 4 June 2020 (“the Consolidated H&S Directive”).
Note in particular that, in respect of employees who are over 60 or who have co-morbidities, employers must implement measures to facilitate their safe return to work, which may include special measures at the workplace to limit their exposure to COVID-19 infection and where possible that the employees work from home. (Clause 46(5) of the Level 3 Regulations).
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 H&S Directive.
Q: What are the administrative things that need to in place before employees can return to work?
A: From an administrative perspective, the person “in control of” the religious organisation must designate a COVID-19 Compliance Officer, whose name must be prominently displayed in the office in a visible area (Clause 47(2)(b) of the Level 3 Regulations). The Compliance Officer’s job is to:
*Annexure E to the Level 4 Regulations (which continues to apply at Level 3) says that a COVID-ready workplace plan must be developed prior to the reopening of any organisation employing persons or serving the public. For small organisations, the plan can be basic reflecting the size of the organisation. For medium and large organisations, however, a more detailed written plan should be developed, given the larger numbers of persons at the workplace, and should include:
(a) sanitary and social distancing measures and facilities at the entrance and exit to the workplace;
(b) screening facilities and systems;
(c) the attendance-record system and infrastructure;
(d) the work-area of employees;
(e) any designated area where the public is served;
(f) canteen and bathroom facilities;
(g) testing facilities (for organisations with more than 500 employees);
(h) staff rotational arrangements (for organisations where fewer than 100% of employees will be permitted to work).
Q: What are the practical things that need to be in place before the workplace is COVID-ready?
A: In terms of the Consolidated H&S Directive, every employer must:
The Consolidated H&S Directive also contains further requirements with regards to:
Where, however, a religious organisation employs less than 10 employees (“a small organisation”), only the following measures are compulsory:
Only after all of these things have been done, will a workplace be COVID-19 ready and may employees return to work.
Q: From an employment law perspective, what administrative measures must an employer take?
A: In terms of the Consolidated H&S Directive, every employer must:
(Clause 20.11).
Q: From a health and safety perspective, what are the requirements imposed on an employer?
A: In terms of the Consolidated H&S Directive every employer must:
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: Must employees have permits to travel to and from work?
A: In terms of the Level 3 Regulations, permits are not required for employees who live and work in the same area. However, permits are required for employees who need to travel between provinces, metropolitan areas, districts and hotspots – either when they travel to and from work; or when they travel in the course of carrying out their work responsibilities or performing their services under Level 3 (Clause 33(4)(a)).
The Permit has to be issued by the head of the institution, on a form that corresponds with Form 2 of Annexure A to the Level 4 Regulations. (This normally requires that the Form would be placed on the church’s or religious organisation’s letterhead, with an official stamp). The employee has to carry the Permit, and his/her I.D. document, with him/her at all times.
In order to avoid any potential issues however, it may be wise to issue permits to all employees.
Note further that curfews may apply from time to time, thereby restricting movement during those hours. In terms of the amended Level 3 Regulations effective from 12 July 2020, a national curfew applies between 21h00 and 04h00. As such, no movement of persons may take place during this time (except persons who are allowed to work under Level 3 and have a permit corresponding with Form 2 of Annexure A, or persons attending a security or medical emergency). (Amended Clause 33(1)(A) of the Level 3 Regulations).
Q: At Level 3, can pastors / religious workers travel between provinces, metropolitan areas, districts and hotspots to do their work?
A: Yes. The Level 3 Regulations allow movement of persons between provinces, metros, districts and hotspots only in certain specified circumstances, including when persons travel “in the course of carrying out work responsibilities or performing any service permitted under Level 3”. The only condition is that the employee must have a Form 2 Permit. (Clause 33(4)(a)).
Again, the important question is whether it is necessary for the employee to travel to carry out his/her responsibilities or to perform his/her services as a pastor or person employed by a religious organisation. If it can be done in another way (e.g. via the phone, or a virtual meeting), that is “first prize”.
Note that curfews may apply from time to time, thereby restricting movement during those hours. In terms of the amended Level 3 Regulations effective from 12 July 2020, a national curfew applies between 21h00 and 04h00. As such, no movement of persons may take place during this time (except persons who are allowed to work under Level 3 and have a permit corresponding with Form 2 of Annexure A, or persons attending a security or medical emergency). (Amended Clause 33(1)(A)
of the Level 3 Regulations).
Q: Can we have staff, or other, meetings at the office?
A: While “gatherings” generally remain prohibited under Level 3, the Regulations permit “gatherings” at a workplace for work purposes (Clause 37(1)(c)). This means that staff meetings, and other meetings such as prayer or counselling meetings, can take place at the office, subject however to strict social distancing and health protocols being observed.
In this regard, note also the Directions for religious gatherings, issued by the COGTA Minister on 28 May 2020. In terms of the Directions, “where places of worship remain open to the public for visits, prayer or counselling, the provisions of [the] Directions apply” (Clause 8(5)).
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 his/her house, and that is his/her 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 (Clause 37(1)(c)), subject however to the very same strict social distancing and health protocols that apply to other workplaces as set out in the Level 3 Regulations.
Note however that, while on a strict interpretation of the Regulations, this is a legal possibility, work-related meetings at one’s house is not without legal risk. This is because social gatherings remain prohibited at Level 3, and a gathering of people at a house is very likely to attract the attention of neighbours or the Police, who may well 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 (for example by showing that your office is in fact at home, or otherwise) that your home is indeed your workplace, and that the meeting is for work purposes, the “gathering” may be viewed as an illegal gathering, with possible criminal consequences. 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: Can pastors / religious workers counsel people at Level 3?
A: Yes. In President Ramaphosa’s speech on 28th May 2020, he indicated that religious leaders would be recognised as “essential workers” for purposes of spiritual counselling. This was also confirmed by the COGTA Minister’s media statement dated 29 May 2020, as follows: “government is now in a position to categorise religious counselling as an essential service. This will enable the millions who have been affected by the virus, to receive this much needed service, since the majority cannot afford professional attention of this nature”.
The problem, however, is that neither the Level 3 Regulations nor the Directions for religious gatherings, explicitly recognise religious leaders as “essential workers”. As a result, should any area move back to Alert Level 4 or 5 (as contemplated in Clause 3(1) of the Level 3 Regulations), the religious workers in that particular area may no longer be able to fulfil their tasks and functions amongst their members and/or the communities they serve, as “essential workers”. This is presumably not what was intended, as spiritual counselling is no less necessary nor “essential” – and is arguably even more necessary and “essential” – if/when the infection, sickness and (even) death rate increases amongst its members and communities increases. Many South Africans will grieve, and have to come to terms with, the death of loved ones – and it is then that religious leaders are most needed and valued.
*Note: In the circumstances, FOR SA has written to the Minister to recommend that the Regulations be amended to explicitly include “spiritual counselling” as an “essential service”, and to bring it in line with what the President and the Minister had already announced. In terms of a letter received from the COGTA Minister on 29 June 2020, “the regulations published on 29 April 2020 provided for a list of essential and permitted services. It includes ‘all social work, counselling, services supporting gender based violence, care and relief activities’. (See table A Alert Level 4, Part P.4). Although it does not explicitly mention ‘including religious leaders’, as per your proposal, there is already provision and no disagreement that essential and permitted services encompass the services that are rendered by religious organisations. Please also note that we are not currently considering any amendments to the regulations as it pertains to level 4. It may however be considered as the need arises in future.” FOR SA will continue to engage with Government in this regard.
Q: Is a permit required for spiritual counselling?
A: Although this is not explicitly provided for in the Regulations or Directions, we recommend that the head of the institution issues pastors / religious leaders involved in spiritual counselling with a permit that corresponds to Form 2 of Annexure A to the Level 4 Regulations. This will confirm, and serve as proof, that the pastor / religious worker is recognised / employed by the religious organisation, and needs to travel (including between provinces, metros, districts and hotspots) in the course of carrying out his/her work responsibilities or performing his/her services (including but not limited to spiritual counselling), which are permitted under Level 3. (See Clause 33(4)(a) of the Level 3 Regulations).
Q: Where can / should spiritual counselling be done?
A: The Regulations and Directions are silent in this regard. From a (legal and health) risk point of view, we recommend that – as far as possible – counselling happens at the church or office of the religious organisation. This would avoid any suspicion that an illegal “social” gathering is happening either at the religious worker’s, or the counselled person’s house.
Where this is not possible, we recommend that the counselling be done at the religious worker’s “home office” (which, from a legal perspective, is closer to a religious building or office), alternatively at the house of the person receiving the counselling.
Common sense should prevail however, taking into account in particular which place – from a health point of view – poses the least risk of exposure to all involved. For this reason, and to enable them to make the best decision in this regard, pastors / religious workers are advised to do a symptoms assessment with the person/s who will be receiving the counselling, prior to the appointment.
Note further that curfews may apply from time to time, thereby restricting movement during those hours. In terms of the amended Level 3 Regulations effective from 12 July 2020, a national curfew applies between 21h00 and 04h00. As such, no movement of persons may take place during this time (except persons who are allowed to work under Level 3 and have a permit corresponding with Form 2 of Annexure A, or persons attending a security or medical emergency). (Amended Clause 33(1)(A) of the Level 3 Regulations).
Q: What documentation, if any, should be completed during counselling?
A: Again, while the Regulations and Directions are silent in this regard, it would be wise – from a legal, and health risk perspective – to complete certain documentation at every counselling appointment.
In this regard, we recommend that the head of the institution draws up a standard counselling form to be provided to every pastor / religious worker who has been issued with a “counselling permit” as recommended above. The Form should indicate:
In addition, the Form should include a symptoms assessment of the person who is receiving the counselling. In particular, he/she should declare in writing whether he/she suffers from any of the following symptoms: fever, cough, sore throat, shortness of breath, difficulty breathing, body aches, loss of smell or taste, nausea, vomiting, diarrhoea, fatigue and/or weakness.
Every completed Counselling Form should be safely kept for a period of no less than six (6) months.
Q: The church or religious organisation runs a playschool / crèche / early childhood development centre (ECDC). Can it re-open?
A: In terms Directions issued by the Minister of Social Development on 10 July 2020, early childhood development centres (ECDCs) and partial-care facilities are allowed to re-open subject to certain strict conditions set out in the Directions.
Q: May the restaurant / coffee shop at the church re-open?
A: The Advanced Level 3 Regulations issued on 25 June 2020, allow for the re-opening of restaurants, coffee shops etc. on condition that these establishments comply with the health, sanitisation and social distancing protocols in the Regulations and Tourism Directions.
END.
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