South Africa’s Employers Adjust to Phased Reopening

By Rosemarie Lally, J.D. June 1, 2020
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Capetown, South Africa with mountains in the background

​South Africa, which has seen its economy crater since a lockdown was imposed March 27 to slow the spread of coronavirus, began its phased reopening May 1. Employers are trying to negotiate "the new normal" as the cocoon slowly unwinds, according to several legal experts.

The low incidence of coronavirus infection in South Africa—22,583 cases and 429 deaths as of May 25—is attributed by the World Health Organization to the country's tough containment measures imposed on March 27. However, these measures have taken a serious toll on the economy. South Africa was already experiencing a 29 percent unemployment rate prior to the pandemic. Economists at the International Monetary Fund now expect a 5.8 percent contraction in South Africa's economy and the possible loss of an additional 1 million jobs.

Despite these economic pressures, President Cyril Ramaphosa has stressed the need for a phased reopening to avoid further coronavirus spread and another lockdown. On May 1, South Africa moved from the maximum disease-alert Level 5—which prohibited everyone, with the exception of essential workers, from leaving their homes except to buy food, collect welfare and seek medical care—to Level 4, which allows one-third of the country's workers to return to their jobs.

Level 4 allows mining and manufacturing to operate at half capacity; agricultural, financial and telecom sectors may resume activities in full. At Level 4, a nighttime curfew is imposed, masks are required outside the home, and employees over 60 are encouraged to work from home. The country will continue gradually reopening its economy through the next stages, until Level 1 is reached, and all sectors can reopen with free movement between provinces. Even at Level 1, restrictions on international travel may remain in place.

Ramaphosa announced May 24 that the government will downgrade the shutdown to Level 3 on June 1. The easing of restrictions will be area-specific to address coronavirus "hot spots" of infection, largely centered around cities, including Cape Town, Johannesburg and Durban, South Africa. Depending on the average active cases per 100,000 people, subdistricts will be individually assigned levels of lockdown to prevent the spread of the virus.

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Challenges of a Phased Reopening

"The phased opening presents significant challenges—there is much uncertainty as to the sustainability of businesses, as some businesses are permitted to reopen and others may not," said Gillian Lumb, an attorney with Cliffe Dekker Hofmeyr in Cape Town.

"Businesses are not sure how much longer they will have to sit unopened or whether—if they are permitted to open—they can operate effectively given that businesses to which they supply services may still be closed."

A government program, COVID-19 Temporary Employee/Employer Relief Scheme (TERS), offers income replacement on a sliding scale to employees whose employers have had to close operations, in whole or part, temporarily due to COVID-19. Nonetheless, uncertainties have arisen in relation to the program, its scope and under what circumstances benefits may be claimed, Lumb said. Amendments have been made to TERS as matters have progressed.

These payments have been a lifeline, but still "businesses are retrenching, and many are struggling not to lay off employees," Lumb said. Employers are using creative methods to keep employees on, such as rotating employees and encouraging workers to use paid annual leave when they are prevented from work due to the lockdown. If businesses are permitted to operate but work is reduced, one of the most common approaches adopted by employers has been to cut work hours and corresponding pay, she noted.

Many employers remaining in lockdown will have to consider measures such as reducing work hours or implementing temporary layoffs, especially of those who are unable to work remotely, according to Melanie K. Hart, an attorney with Fasken in Johannesburg. Other employees may be adversely affected even when their employer opens, if the number of employees permitted to work at an office is limited due to social distancing or if certain positions are no longer required because of changes in the nature of the workplace, she said.

Some workplaces have been able to take advantage of teleworking, but remote working is quite new for many and presents its own challenges, according to Lumb. "Many employers are looking at various challenges, including technology and how best to deal with confidential information now being in workers' homes."

Hart expressed confidence that telework is likely to continue post-shutdown. "Employees will return with the knowledge of their employer's capacity and appetite to work remotely," she said, adding that many companies may develop long-term work-from-home policies. 

Restoring a Safe, Productive Workplace

Addressing the employer obligation to ensure that employees return to a safe workplace upon reopening, Hart recommended that, as a first step, employers conduct a risk assessment to determine the risk of exposure. She noted that the level of risk exposure will depend on the type of industry.

Employers will then be required to implement protective measures, Hart said. "Protective measures may include engineering controls, such as installation of high-efficiency air filters and physical barriers, as well as administrative controls, including medical surveillance, safe work practices and a work environment that promotes personal hygiene," she said. In addition, "personal protective equipment, specific to occupation and job task, may also be needed to prevent certain exposures."

"Employers need to invest in building resilience amongst employees," Hart said. Employees must be taught how to manage financial and emotional stresses arising from the lockdown. "If this is not addressed proactively, it will impact workplace morale, performance and team synergies. There is a real need to transfer to employees a capacity to invest in the new business model and acquire a growth mindset around change."

Rosemarie Lally, J.D., is a freelance legal writer based in Washington, D.C.

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