COVID-19 Risk Assessment and Return to Work Plans

Following the numerous government communications late last week and on the weekend South African businesses categorized into one of the four lower Covid-19 alert levels may be allowed to re-commence operations provided that they comply with onerous regulatory requirements. These will predominantly require businesses to prepare and implement comprehensive risk assessment and workplace plans in order to operate. It is highly likely that these documents will be subject to government scrutiny and workplace inspections are likely to take place to ensure compliance. We have established a team of practitioners to assist our clients by:

  • Conducting due diligence of their operations in order to determine what steps need to be implemented in order to comply with government requirements;
  • Undertaking the required risk assessment in consultation with client;
  • Drafting and assisting client to implement COVID-19 workplace plans; and
  • Being on standby 24/7 to deal with government health and safety inspections

For any enquiries about this service offering as we move from level five to level four alert level on 1 May 2020, please contact:

 

Overview of government’s position

Government’s three systems for the easing of lockdown

Current indications gleaned from government advisory documentation prepared with input from several Government departments as well as civil society, are that the easing of the lockdown will take place using three systems.

The first system is an “alert system”, used to determine and fix the level of restrictions in place across the nation, provincially and in municipal districts. This “alert system” will be used to determine which of five levels of alert will be implemented geographically, with level five being the highest level of alert (and the one applicable to South Africa’s lockdown currently and until 30 April 2020, where only businesses involved in ‘essential goods’ and ‘essential services’ may operate), and level one the lowest. In essence, the higher and less controlled the spread of the virus which causes Covid-19 and the lower the health system readiness in any particular region, the higher the level of alert will be for that region. Conversely, regions where the degree of spread of the virus is in under control and the health system in the particular region is able to cope will be categorized at a lower risk alert level.

The second system (and, from a business owner’s perspective, probably the most vital) involves the classification of industries for readiness to return to work at one or more of the five alert levels, having regard to various criteria of each industry and each business operating within it. In essence, this system will determine which businesses can return to work, and how they may do so.

Crucially, the second system will also include strict regulation to ensure that businesses who are allowed to operate at a particular alert level have proper and comprehensive risk assessments and Covid-19 plans in place for their workplaces and who demonstrate that they are able to operate safely and with a minimum risk of virus transmission. Taking into account recent regulations promulgated by the Department of Labour, such risk assessment and Covid-19 workplace plans are likely to be subject to the scrutiny of Health and Safety regulators, who are also likely to conduct workplace inspections to ensure compliance.

Unfortunately, businesses within certain industries will, by virtue of the nature of the industry in which they operate, only be able to operate at the low alert levels and will be prohibited from operating even when the risk alert level drops from the current level five to level four or level three or level two. Some businesses (for example, bars and restaurants) may not even be able to open in areas whose risk level is at level one.

The third system involves the implementation of enhanced health and social distancing arrangements and the regulation of public spaces. It will be important for businesses who are authorized to operate within particular alert levels to demonstrate that they understand and will implement appropriate social distancing arrangements in their risk assessments and Covid-19 workplace plans.

How are business categorized into the five alert levels?

From a business owner’s perspective, it is the second system which is the most critical, and the one over which businesses whose industries are permitted to return to operation at a particular risk alert level have at least some degree of control. The factors used by government to determine which industries may operate at which alert level are, broadly, (i) the risk of transmission which the industry may cause when operating; (ii) the impact on the industry if lockdown continues; (iii) the value which the industry concerned contributes to the economy and (iv) the protection of livelihoods of the most vulnerable.

While the precise alert levels into which various industries will be placed have yet to be finalized formally by Regulation, there are already strong indications of the approach which government will take. At the moment, it appears that public comment will not be formally invited on the Regulations, but there remain opportunities for businesses to motivate and lobby government for the inclusion of their industries in the higher risk alert levels, based on the four criteria set out above.

Required risk assessment and Covid-19 business plans

From the above, it is clear that a business which is categorized into an alert level at which they may operate within their region will require a comprehensive risk assessment to be undertaken and a Covid-19 business plan to be drafted. Because government is likely to subject risk assessments and business plans to scrutiny, and workplace inspections to ensure compliance is likely, it is important that the risk assessment and business plans are conducted and drafted properly to ensure legal compliance and to prevent workplaces from being shut down again.

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