Africa: Getting Back to Business in the COVID-19 Era

May 22, 2020

Businesses in Africa should prepare back-to-work plans while also listening to guidance from health and government authorities as the COVID-19 coronavirus pandemic continues.

Here's what you should know about reopening in certain areas.

Kenya

Content provided by Bowmans
 
Contact:
Alex Mathini
Partner
 
Introduction
Kenya reported the first positive COVID-19 case on the 13 March 2020 and as at 19 May 2020 a total of 963 cases have been reported. Since the first case, the Kenyan government has implemented an array of measures providing relief for both businesses and individuals, from a fiscal and monetary perspective.
 
Contrary to total lockdowns imposed by many jurisdictions, the Kenyan government has largely refrained from a total lockdown due to the large informal sector that would be adversely affected. Instead, the government imposed a nationwide curfew (7 p.m to 5 a.m.) that is in effect till 6 June 2020, ordered containment measures restricting movement in and out of various areas classified as hotspots and imposed a ban on restaurants and bars, which was recently lifted. In addition, the government restricted international passenger travel in and out of Kenya, save for flights intended to return citizens to their home countries. 
 
We note that the Kenyan government is yet to publish or announce a comprehensive national ‘return to work’ policy, and is still echoing shelter in place and social distancing guidance. However, the government had issued an occupational safety and health advisory, to help minimize the spread of COVID-19 at work places. The government has also published guidelines on the reopening of restaurants and eateries, and a guide for the business continuity of banking institutions. 
 
General Guidance 
 
Save for the occupational health and safety advisory and the guidelines for restaurants and eateries, all other businesses have largely been required by the National government to comply with the general social distancing and health measures by the World Health Organization (WHO). Business owners and employers have been directed by the government to undertake the following measures:
  • To ensure social distancing at the work place by maintaining a distance of 1.5 meters between persons
  • Promote and practice general hygiene by installing hand washing facilities and provide sanitizers to employees and customers
  • To encourage working from home and the use of technology in conducting meetings
  • To release all employees from their work place at 4 p.m. every day due to the national curfew that is in effect between 7 p.m. and 5 a.m. daily (there is an exception for persons classified as essential services such as medical personnel or employees of financial institutions)
  • To avoid any gatherings or meetings of more than 15 persons in a single area.
‘Return to Work’ Guidelines for Restaurants and Eateries

The Kenyan government published a protocol for the management of restaurants and eateries during the period of the COVID-19 pandemic on 24 April 2020. The guidelines stipulate the requirements restaurants and eateries are to meet when re-opening:
 
Restaurants and Eateries must:
  • Obtain a permit from the government before reopening
  • Operate between 5:00am and 4:00pm daily
  • Install and operate a contact free thermometer and ensure that every person entering the premises has their body temperature taken
  • All food supplies must be delivered in disposal containers and packaging.
  • Limiting the distance between customers by having only four people for every 10 square meters’ space
  • Postpone or cancel events/banquets with 15 or more attendees
  • Where events or banquets are held for smaller groups, the attendees should be spaced at least six feet apart.
  • All facility access areas, counters, and other surfaces repeatedly touched by employees or customers should be frequently disinfected.
  • Have alcohol based-hand sanitizers at the entrance and exit points.
Premises:
  • Should install wash facilities complete with running water, hygienically operated taps, detergent/soap, sanitizer and appropriate hand drying at the entry of the kitchen
  • Tables in the dining areas must be spaced 1.5 meters’ apart or seat customer groups at least 1.5 meters apart
  • Distance from the back of one chair to the back of the other would be not less than a meter and guests face each other from a distance of at least one meter.
  • Premises must be ventilated and properly lit.
  • There should be physical distancing (1.5m to 4 feet) in food preparation areas.
Screening and Testing
  • Any staff member or reveler with a temperature above 37.5% degrees shall not be allowed entry into the premises and the premises shall immediately notify the Ministry of Health through the toll free number 719.
  • All food workers deployed to work for or in restaurants and eateries must be tested and certified to be COVID-19 negative by a government certified laboratory.
  • Staff who have COVID-19 symptoms should not be allowed to work in restaurants and eateries. 
Staff Requirements
  • All staff members must practice personal hygiene and appropriately use Personal Protective Equipment (PPE).
  • There should be a procedure for staff members to report illness by phone (or email).
  • Staff members that handle food should have disposable gloves at all times which must be changed frequently and have their hands washed during the change. 
Guideline for the operation of banking institutions
 
The Central Bank of Kenya issued a guidance note on pandemic planning for the banking sector outlining various business continuity and reporting requirements:
  • The Board of Directors of an institution are expected to formulate pandemic preparedness planning strategies, policies, procedures, guidelines and set minimum standards for an institution
  • Institutions are required to consider a range of scenarios on how pandemics could impact their clients’ financials and their own operations
  • Institutions should strive to protect the health of staff and other persons within their premises
  • Institutions should consider supply shortages, identification and maintenance of key facilities, formulating quarantine practices and for setting aside specific quarantine zones
  • Communication strategies developed in line with Business Continuity Plans (BCP) should be implemented in order to reduce disruption
  • Institutions are encouraged to utilize conference calls, video conferencing, teleconferencing and webinars for meetings and events
  • Annually, institutions are required to provide the Central Bank with a report concerning the occurrence and handling of pandemic incidences
Compensation and Remuneration
 
The government has not passed any new laws or regulations altering the existing statutory requirements on the compensation and remuneration of employees. However, there is a law currently in Parliament that inter alia seeks to prohibit employers from reducing employee salaries without their consent and terminating employment contracts during the pandemic. In addition, on 25 April 2020, the President assented to a law that reduced the tax payable by employees.
 
Court Hearings
 
Although open Court hearings are still restricted, the judiciary staff including judges, are required to report to their physical stations as they would do if it was business as usual. However, the court proceedings are conducted through electronic means. 

  

South Africa

Content provided by Bowmans
 
Contact:
Kirsten Kern
Partner
 
Current national guidance or requirements regarding returning to work
 
On 15 March 2020, President Cyril Ramaphosa declared a national state of disaster in South Africa in terms of the Disaster Management Act, as amended (DMA). Since that date, several regulations have been published to enforce a lockdown, with only essential service providers permitted to attend at work and other businesses to remain closed to the extent that remote working is not possible. The Regulations have been amended several times since that date. The most recent amendment was the introduction of a five level, risk adjusted strategy to a gradual recovery of the economy (the Regulations).
 
National guidance and requirements regarding a safe return to work are contained in the most recent Regulations, directions published by the Department of Employment and Labour, among others, and numerous sector / industry specific directions. General pre-existing requirements also remain relevant (i.e. the Occupational Health and Safety Act (OHSA), the Compensation for Occupational Injuries and Diseases Act (COIDA), and the Basic Conditions of Employment Act, among others).
 
Logistical limits regarding social distancing and size of meetings
 
The employer must develop measures to ensure the workplace meets standards, including:
  • measures to work from home, or minimise physically presence
  • restrictions on face-to-face meetings
  • special measures for employees over 60 with known conditions which may place them at a higher risk of complications or death.

The employer must designate a COVID-19 Compliance Officer  to oversee implementation of a Workplace Plan (the Plan). Employers with less than 10 employees must:

  • ensure employees are at least 1.5 meters apart, or if not practicable, place physical barriers between them
  • ensure employees with COVID-19 symptoms are not permitted to work
  • immediately contact the hotline: 0800 02 9999 for instruction
  • provide cloth masks or require employees to wear cloth masks
  • provide employees with hand sanitizers, soap, clean water for hands and disinfectants to sanitize workstations
  • ensure employees wash hands and sanitize; and
  • ensure workstations are regularly disinfected.
Businesses with 10 or more employees must detail:
  • date the business will open and operating hours;
  • timetable for a phased return to work;o steps for COVID-19 readiness;
  • a list of staff members who can work from home, who are 60 or older, and staff with health risks, who will be required to stay at home or work from home;
  • sanitary and social distancing measures, screening facilities and systems, attendance record system and infrastructure, the designated area where the public is served, canteen and bathroom facilities, testing facilities for establishments with more than 500 employees and staff rotational arrangements; and
  • arrangements for customers or members of the public including sanitation and social distancing measures.
Click here for additional information for employers with more than 10 employees.
 
Testing requirements (e.g. taking people’s temperatures) or recommendations including employee monitoring
 
Employers with more than 10 employees must:
  • screen workers, when they arrive at work.
  • comply with guidelines issued by the National Department of Health in consultation with the Department of Employment and Labour in respect of screening, medical surveillance and testing.
  • require every worker to report whether they suffer from symptoms. 
  • require employees to immediately inform the employer if they experience symptoms
  • If a worker presents with symptoms:
    • not permit attendance at work;
    • if already at work, isolate the worker, provide a FFP1 surgical mask, and arrange for transport to self-isolation or for a medical examination; 
    • immediately assess the risk of transmission and disinfect the area; 
    • refer employees at risk for screening; 
    • employee who presents with symptoms to be referred to a testing site; 
    • place the employee on paid sick leave, or if sick leave is exhausted, make application for illness benefits from the Unemployment Insurance Fund in terms of the Temporary Employer / Employee Relief Scheme (TERS);
    • ensure the employee is not discriminated against;
    • if there is evidence that the worker contracted COVID-19 as a result of occupational exposure, lodge a claim under COIDA.
  • If a worker has been diagnosed with COVID-19 and isolated, the worker may only return to work if:
    • the worker has undergone a medical examination testing negative; 
    • the worker wears the minimum of an FFP1 surgical mask for 21 days from initial diagnosis; 
    • the employer ensures the worker adheres to social distancing, hygiene and cough etiquette; 
    • the employer closely monitors the worker. 
Cleaning recommendations or requirements
 
Employers with more than 10 employees:
  • ensure adequate facilities for hand washing.
  • hand sanitizers must contain at least 70 percent alcohol.
  • ensure sufficient sanitizer available at the entrance to and within the workplace, free of charge. 
  • provide employees who work away from the workplace, other than at home, with hand sanitizer.
  • if a worker interacts with the public, provide the worker with hand sanitizer for both the worker and the person with whom the worker has interaction.
  • ensure all surfaces and equipment are disinfected before work begins, regularly during the working period and when work ends.
  • ensure that biometric systems are disabled or are made COVID-19 safe.
  • ensure all areas are regularly cleaned and disinfected. 
  • ensure paper towels are provided to dry hands. Fabric toweling is prohibited.
  • instruct employees who interact with the public to sanitize between each interaction.
  • ensure that surfaces are routinely cleaned and disinfected

Compensation or remuneration issues

The issue in relation to payment arises in relation to employees who are not in essential or permitted businesses and who cannot work remotely, as well as employees who are only permitted or required to render services on a short-time basis. Situation specific advice should be sought regarding paying these employees considering the reason for inability to work, the employer’s approach, the portion or structure of remuneration, whether or not tied in with leave, and the period for which remuneration is not paid. If employers are unable to pay their employees during the state of disaster, they may be able to claim benefits from the UIF or under the TERS.   

Data collection and privacy

Organisations may need to collect COVID-19 information to comply with their own legal obligations and to keep staff and others safe.

In order to prepare regulatory required lists of information, the employer would need to request information subject to voluntary disclosure and the general rule that such information may only be processed with the employee’s informed consent shall apply. An employee can accordingly not be sanctioned for not making the disclosure. Reference to be given to: the South African Protection of Personal Information Act (POPIA), the common law and the constitutional right to privacy.