Statutory Instrument 110 of 2020

Gazetted on the 17th of May 2020 is S.I 110 of 2020. This is the 8th order that the Minister of Health has promulgated as part of the lockdown legislation passed in response to the COVID-19 pandemic.

This article will highlight the major points emanating from this Statutory Instrument.

Lockdown extension

The Statutory Instrument extends the lockdown indefinitely subject to a review every two weeks.

Extension of the definition of essential services

The definition of essential services now includes the conducting of public examination in schools, colleges, universities, and tertiary institutions.

This means that public examinations can now be conducted without hindrance.

Outdoor Exercises

The statutory instrument now permits persons to engage in outdoor exercises on condition that group exercises shall be limited to a maximum of 50 people.

Persons are required to wear facemasks and maintain social distancing during such exercises.

Public Gatherings

Gatherings of more than 50 people are still barred.

Extension of working hours

Businesses in the formal commercial sector of the economy are now permitted to operate from 0800 hours to 1630hours.

Low-risk sports

Some sports are now permitted provided certain conditions are met. These sports include swimming, athletics, rowing, cycling, equestrian events, fencing, golf, gymnastics, motorsports/BMX, shooting, tennis, chess, darts, drafts, and pool.

Some of the conditions for these sports include:

  1. Spectators should be less than 50.
  2. Athletes should maintain social distancing.
  3. Temperatures should be checked before and after the sports.
  4. Athletes don’t share PPE.

Persons competing or spectating should also be subjected to testing for the COVID-19 disease at the direction of an enforcement officer.

927 Views

SUMMATION OF STATUTORY INSTRUMENTS PASSED IN CONNECTION WITH COVID-19

INTRODUCTION

This article provides a brief outline of the various statutory instruments that have been passed in Zimbabwe in response to the COVID-19 pandemic.

STATUTORY INSTRUMENT 76 OF 2020

Title: Civil Protection (Declaration of State of Disaster: Rural and Urban Areas of Zimbabwe) (COVID-19) Notice, 2020.

Date of Publication: 23rd March 2020.

Notes:

  • The statutory instrument declared of a state of disaster in all urban and rural areas in Zimbabwe following declaration by the World Health Organisation of COVID-19 as a global pandemic.

STATUTORY INSTRUMENT 77 OF 2020

Title: Public Health (COVID-19 Prevention, Containment and Treatment) Regulations, 2020.

Date of Publication: 23rd March 2020.

Notes:

  • The instrument declared COVID-19 to be a formidable epidemic disease.
  • All gatherings were prohibited.
  • It gave enforcement officers the power to order anyone suspected to be infected with COVID-19 to undergo medical examination among other orders.
  • That the minister of health may also give orders in response to the disease which orders will be published in the Gazette.

STATUTORY INSTRUMENT 83 OF 2020

Title: Public Health (COVID-19 Prevention, Containment and Treatment) (National Lockdown) Order, 2020

Date of Publication: 28th March 2020

Notes:

  • Provided for the national lockdown (Stage 4 lockdown) which prohibited unnecessary movement save for essential services.
  • The lockdown under this instrument started from the 30th of March 2020 to the 19th of April 2020.
  • It prohibited the hoarding of medical supplies needed to combat the COVID-19.
  • Local authorities were ordered to make land or premises available for isolation and quarantine of all COVID-19 suspects.
  • Provided for penalties in connection with false reporting during the national lockdown.

STATUTORY INSTRUMENT 92 OF 2020

Title: Public Health (Standards for Personal Protective Apparel, Materials and Equipment) Regulations, 2020

Date of Publication: 19th of April 2020

Notes:

  • Regulations apply to the standards required for the manufacture, sale and other disposals of apparel, materials and equipment intended to be worn or used as protection against any formidable infectious disease by different categories of persons in their interaction with members of the public.

STATUTORY INSTRUMENT 93 OF 2020

Title: Public Health (COVID-19 Prevention, Containment and Treatment) (National Lockdown) (Amendment) Order, 2020 (No. 3)

Date of Publication: 19 April 2020

Notes:

  • Extended the lockdown from 30th of March 2020 to the 3rd of May 2020.
  • The initial lockdown was from 30th of March 2020 to the 19th of April 2020.
  • Prohibited the export of supplies needed to combat COVID-19 unless if there is proof that such supplies are in excess.
  • Prescribed measures to be undertaken by cargo aircraft and drivers of goods vehicles in transit or cross-border vehicles engaged in essential services.

STATUTORY INSTRUMENT 94 OF 2020

Title: Public Health (COVID-19 Prevention, Containment and Treatment) (National Lockdown) (Amendment) Order, 2020 (No. 4)

Date of Publication: 21st April 2020

Notes:

  • Provided for the relaxation of the lockdown (Stage 3 Lockdown).
  • Decentralised tobacco auction floors.
  • Provided that effective, 20 April 2020 employees of manufacturers, persons in the mining sector and buyers and sellers of designated tobacco auction floors were essential services.

STATUTORY INSTRUMENT 96 OF 2020

Title: Presidential Powers (Temporary Measures) (Deferral of Rent and Mortgage Payments During National Lockdown) Regulations, 2020

Date of Publication: 29 April 2020

Notes:

  • Prohibition of the eviction or ejectment from the land or premises constituting the rented accommodation during the period of the lockdown.
  • Mortgagors were granted a deferral of the obligation to make mortgage payments.
  • Provided that tenants may defer their rental payments and in which case no interests will be levied because of such deferment.

STATUTORY INSTRUMENT 97 OF 2020

Title: Presidential Powers (Temporary Measures) (Deferral of Rent and Mortgage Payments During National Lockdown) (Amendment) Regulations, 2020 (No. 1).

Date of Publication: 2 May 2020

Notes:

  • Provides for penalties if a person causes or forces or attempts to cause or force the eviction of any protected tenant or protected mortgagor for asserting or exercising any of his or her rights under these regulations.

STATUTORY INSTRUMENT 99 OF 2020

Title: Public Health (COVID-19 Prevention, Containment and Treatment) (National Lockdown) (Amendment) Order, 2020 (No. 5).

Date of Publication: 2 May 2020

Notes:

  • Provided for further the relaxation of the lockdown (Stage 2 Lockdown).
  • Businesses in the formal commercial and industrial sectors of the economy designated as essential service.
  • Provided for mandatory testing of employees on the resumption of business operations after the lockdown.
  • Defines the businesses in the formal commercial and industrial sectors and allowed such businesses to operate between 0800 hours and 1500 hours.
  • Also provides for measures to be undertaken by persons when boarding public transportation.
  • Extended the lockdown period to the 17th of May 2020 and buttressed the prohibition of gatherings.

STATUTORY INSTRUMENT 102 OF 2020

Title: Public Health (COVID-19 Prevention, Containment and Treatment) (National Lockdown) (Amendment) Order, 2020 (No. 7)

Date of Publication: 6 May 2020

Notes:

  • Repeals certain sections in STATUTORY INSTRUMENT 99 OF 2020
  • Provides for the mandatory testing of employees within 14 days of resuming operations under stage 2 lockdown.

STATUTORY INSTRUMENT 103 OF 2020

Title: Public Health (COVID-19 Prevention, Containment and Treatment) (Amendment) Regulations, 2020 (No. 3)

Date of Publication: 6 May 2020

Notes:

  • Provides for the mandatory testing of employees within 14 days of resuming operations under stage 2 lockdown and after the lockdown.

STATUTORY INSTRUMENT 110 OF 2020

Title : Public Health (COVID-19 Prevention, Containment and Treatment)
(National Lockdown) (Amendment) Order, 2020 (No. 8)

Date of Publication: 17 May 2020

Notes:

  • The Statutory Instrument extends the lockdown indefinitely subject to a review every two weeks.
  • It now permits persons to engage in outdoor exercises on condition that group exercises shall be limited to a maximum of 50 people.
  • Gatherings of more than 50 people are still barred.
  • Some sports are now permitted provided certain conditions are met.

717 Views

SI 102 of 2020: THE MAIN POINTS

Background

On the 2nd of May 2020, the Minister of Health published SI 99 of 2020. This piece of law clearly stated that employers should make arrangements with enforcement officers to have their employees tested for COVID 19 before resuming operations. This, in my view, meant that the government would facilitate the testing exercise and all an employer would simply have to do is contact the Ministry of Health Call Centre or Ministry of Information Call Centre(see 11F(2) and (3) as per SI 99 of 2020) and have employees tested.

On the 4th of May 2020, the Ministry of Health produced guidelines for mandatory testing of employees. The guidelines provided that employers can facilitate the testing of their own employees by making use of designated private institutions or they can also purchase own testing kits, among other provisions. Quotations from designated institutions ranged between 25 USD and 65 USD. This sparked an outcry from the public as such tests were exorbitant.

On the 6th of May 2020, one local newspaper reported that the government had allowed companies to open and operate without the need for testing employees. This came as a relief! This was a temporary relief.

By statutory instrument 102 of 2020, the Minister of Health has promulgated the 7th Order under the COVID-19 regulations. This legislation was published in an Extraordinary Government Gazette dated the 6th May 2020.

The Statutory instrument does not suspend the testing of employees, Instead, it simply gives a14-day period within which all employees should be tested.

The main purpose of this article is to outline the main points emanating from this SI.

Scope of Application

This SI applies to Part IIIB exempted persons. Such persons are defined under SI 99 of 2020 as persons in businesses in the formal commercial and Industrial sectors of the economy.

Mandatory testing of employees

This SI makes it mandatory for employers and employees to subject themselves to testing for COVID-19 within 14 working days of resuming operations.

The record of such testing must be kept by the employer for as long as the declaration of COVID-19 as a Formidable Epidemic Disease is in place. This declaration is found in SI 71 OF 2020 gazetted on the 23rd of March 2020.

Day of the opening of business

The day a business resumes its operations is critical in terms of this SI because it determines the last day within which an employer should have caused all his or her employees to be tested.

In terms of the statutory instrument, all businesses affected will be deemed to have opened their doors on the 7th of May 2020 (The day after SI 102 of 2020 was promulgated). This means that all businesses should ensure that their employees are tested by the 26th of May 2020.

An employer who opens his business at a later date bears the burden of proving such a date in which case the 14 days will start to run from that particular day

Retesting of persons

The SI prescribes that retesting of persons may be done 30 days after the initial test at the request of an enforcement officer.

Place of testing

The Act also provides that the testing can be done at the workplace or any other place agreed by the employer and the testing party.

Temperature tests and hand sanitization

It is now mandatory for an employer to have all employee’s temperature checked and have their hands sanitized daily.

Temperature scanner and sanitizer should be found on the entry to the workplace.

Powers of enforcement officers

Enforcement officers are now empowered to enter a workplace and demand documentary proof which shows that all persons have been tested.

If such proof is not availed an enforcement officer now has the power to order the business to close subject to reopening after the necessary tests have been done.

Failure to comply with this SI will result in one facing a level 12 fine or one-year imprisonment or both penalties.

1,015 Views

SI 99 OF 2020: THE MAIN POINTS

On the 2nd of May 2020, the Minister of Health promulgated SI 99 of 2020 providing for what has now been termed as level 2 lockdown. The purpose of this article is to highlight the main points emanating from this statutory instrument.

Extension of the lockdown

The SI extends the lockdown period from the 30th March 2020 to the 17th May 2020.

Face masks

The SI now makes it mandatory for anyone leaving their home to be wearing a mask.

It is important to note that the type and quality of the mask is not restricted.

This is meant to accommodate home-made masks.

Public Transport

Persons entering public transportation must be screened before they board such transport.

In practice, this screening is being done using an infrared temperature scanner.

I believe those with temperatures above a certain threshold (usually 37.5 Degrees Celsius) may not be allowed to board the public transport.

Social Distancing will also have to be maintained during the process of boarding public transport.

As per WHO guidelines the accepted social distancing is between 1 meter to 1.5 meters between persons.

The transport will be disinfected against the COVID-19 twice a day.

 In practice, hydrogen peroxide and other forms of disinfectants are used to render such disinfection.

Gatherings

Public gatherings of more than 50 persons are still outlawed but in addition, those attending a public gathering should wear a mask whilst in attendance.

SI 94 of 2020

SI 94 of 2020 was not repealed by SI 99 of 2020.

Its provisions, in as far as they apply to the Mining and Manufacturing sectors remain valid.

More businesses to open

SI 99 of 2020 added “businesses in the formal commercial and industrial sector” as part of the country’s essential services.

The SI also specifies what is deemed to be formal commercial sector and in terms of these provisions, such a business should have a shop or other licence among other requirements.

Testing of persons before a business starts

The Act also posits that before a business starts its operations, all persons shall at “the direction of an enforcement officer submit to screening and testing for the COVID-19 disease”.

The testing function is carried out by the Ministry of Health. All an employer must do is to plan with the “Ministry of Health Call Centre” or the “Ministry of Information Call Centre”. (Repealed by SI 102 of 2020)

Ordinarily, such businesses are expected to operate between 0800 hours and up to 1500 hours. The SI also provides that on good cause being shown, such hours may be extended.

Penalty for violation

Violation of any provisions in the Act can attract a level 12 penalty or imprisonment up to 2 years.

928 Views

UNPAID LEAVE AS A RESPONSE TO THE COVID 19 PANDEMIC

At the time of writing this article, 549 474 cases of Covid 19 virus have been confirmed worldwide. 128 701 people have since recovered from this virus and 24 883 deaths have been recorded.[i] Zimbabwe had recorded 1 death and 5 cases.

Institutions are embarking on a raft of measures to contain the impact of this virus on their employees. The World Health Organisation has recommended that the best way to control this virus is one in which a social distance of 1meter is maintained between persons.[ii] Mindful of the difficulties associated with maintaining such a social distance several organisations have sent their employees on unpaid leave whilst others have had downsized.[iii]

The purpose of this article is to outline the procedure that organisations can engage in to legally implement unpaid leave in their institutions.

Circumstances in which unpaid leave can be applied.

Unpaid leave should be implemented in situations where an organisation is attempting to avoid retrenchment.[iv] The Labour Act specifically provides that retrenchment as a method of terminating a contract of employment can be implemented in response to the need to reduce expenditure, adapting to technological change, reorganising the undertaking or on account of the closure of the enterprise in which the employee is employed.[v]

Covid 19 virus represents a major challenge necessitating a need for every organisation to relook at way operations are being run to curtail the impact of the pandemic.

Faced with the need to reorganise, organisations have an option to utilise retrenchment options provided under section 12C of the Act. In the alternative, section 12D is available as a means of business rescue (special measures to avoid retrenchment).

It is important to note that whilst the Labour Act uses the terms “special measures to avoid retrenchment”, such measures amount to unpaid leave and the term “unpaid leave” will be used in this article.[vi]

Communication with the concerned employees.

Before implementing unpaid leave, the Labour Act makes it mandatory for an establishment to constantly communicate with its employees, any foreseeable changes that may result in the retrenchment of the employees.[vii] This Act does not prescribe how this communication can be rendered but one would assume that this can be through a workers committee or works council and if there is none the communication can be directed to the employees themselves.

Further, even though not directly prescribed in terms of the Labour Act, my experience has shown that such communication must be in writing.

Agreement with the employees concerned.

For unpaid leave to be legal in Zimbabwe, the employer needs to secure an agreement with the employees before implementing it. In practice, a works council resolution duly signed by the parties is more secure than any other form of agreement.

Whilst verbal agreements are not prohibited by the Act, it should be emphasised that written agreements should always be secured.

Once the agreement has been reached with the employees, an employer is expected to give its employees 7 days’ notice before implementation.

Forms of unpaid leave.

Two forms of unpaid leave are envisaged by the Labour Act.[viii] The first option is the short-time work. Short time work is where an employee works less hour per day than normal. As an example, in response to Covid 19, NETONE is going to allow its employees to start work at 9 AM and finish at 1 PM instead of starting at 8 AM and finishing at 4.30 PM.[ix]

Secondly, a system of shifts can also be implemented. In terms of this option, employees may work alternate days or weeks. A good example is where an employee works the first two weeks of the month and is off duty (unpaid leave) on the second week of the month.

It is crucial to note that these two systems can be implemented concurrently.

It is also doubtful if any other forms of unpaid leave, not specifically provided for, will be tolerated legally.

Effect of the agreement.

Once the employees concerned have agreed to revert to any form of unpaid leave discussed above, such agreement shall override any other agreement, contract or collective agreement.[x]

The employees concerned shall be paid wages and salaries equivalent to the actual hours worked. This thus means that when correctly implemented employee’s salaries will be cut, thus cutting organisational expenditure.[xi]

The unpaid leave should result in a reduction of an employee’s salary by 50%.[xii]

The implementation of such unpaid leave shall not affect an employee’s period of service.[xiii]

Period of unpaid leave.

The system discussed above shall be implemented for 12 months after which an organisation is expected to retrench the employees concerned or to revert to normal duties.

Notification of the NEC or Retrenchment Board

Notification of the agreement to the NEC or retrenchment board is only mandatory if the worker’s committee or employees that were part of the agreement were not part of a registered union.[xiv] Such notification should be given 14 days after the employer has started to implement unpaid leave.

 The retrenchment board or the NEC shall have the power to refer these measures to the Minister if these institutions form the impression that such measures are contrary to public policy or otherwise unfair to the employees.

In my next article, I will outline the procedure available to an employer when an agreement can is not secured with the employees.

REFERENCES


[i]               https://google.org/crisisresponse/covid19-map (Date of Use: 27 March 2020).

[ii]               https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-for-public (Date of Use: 27 March 2020).

[iii]              https://www.zimeye.net/2020/02/19/stanbic-bank-to-shut-down-beitbridge-and-chitungwiza-branches/ (Date of use: 27 March 2020).

[iv]              See section 12D of the Labour Act as amended in 2015.

[v]               Section 2 of the Labour Act.

[vi]              Section 12D (7) of the Labour Act.

[vii]             Section 12D (1) of the Labour Act.

[viii]             Section 12D (1) of the Labour Act.

[ix]              https://www.techzim.co.zw/2020/03/netone-cuts-working-hours-closes-certain-shops-in-response-to-corona/  (Date of use: 27 March 2020).

[x]               Section 12D (3) of the Labour Act.

[xi]              Section 12D (4) of the Labour Act.

[xii]             Section 12D (4) of the Labour Act.

[xiii]             Section 12D (7) of the Labour Act.

[xiv]             Section 12D (8) of the Labour Act.

1,350 Views

COVID 19 VERSUS EMPLOYMENT LAW IN ZIMBABWE

The World Health Organisation (WHO) on the 11th of March 2020 declared the Covid 19 (coronavirus) a pandemic.[i] At the point of writing this article, a total of 169 countries and territories[ii] have been affected by the virus and Zimbabwe declared this situation a national disaster on the 17th of March 2020.[iii]

Some companies in this country have started making changes in their operations to curtail the impact of the virus. In this article, I outline what practitioners need to be wary of, from a labour law perspective, as they make changes in their systems in response to this virus.

Sick Leave

Sick leave is one area we all need to be wary of.

Those suspected to be infected by the virus are normally quarantined for purposes of observation. In most cases, people are quarantined when doctors observe some signs and symptoms of Covid 19 like fever and coughing. Once one is quarantined for such observation, I’m of the view that the sick leave provisions in the labour Act (Section 14) should start to apply.

There can also be instances where an employee so quarantined may not be able to request for sick leave in terms of the Labour Act provisions (Section 14(2) of the Labour Act as amended). Companies through their HR departments need to be prudent enough to enquire on the whereabouts of their employees. In some cases, this may warrant that such companies amend their policies to accommodate employees in these predicaments.

The same applies to employees who would have been diagnosed with the virus. Such employees may not be able to communicate their request for sick leave. This is where companies should to wear a human heart and diligently find out about the well-being of their employees. Such may also require policy changes to allow employees, in such circumstances, grace periods for them to get ample time to communicate their intentions to apply for sick leave.

Companies will also need to be wary of the fact that employees may take advantage of the fact that this virus is dreaded so much that one would not want to be near an infected employee. In such instances, unscrupulous employees may take advantage and fail to report for duty on the pretext that they have the virus. In this respect, Human Resources will need to insist on an employee providing a “certificate signed by a registered medical practitioner” as prescribed under Section 14 indicated above.

Unpaid Leave

In certain countries, employees have been sent on unpaid leave as companies battle to contain the spread of the virus.  For most organisations, such unpaid leave was implemented to avoid having to dismiss the employees as production plummeted.

Under section 12D (2) An employer may agree with the employees concerned, or with any workers, a committee to come up with these measures. Whilst these measures may take various forms, section 12D specifically provides for the placement of the employees on short-time work or instituting a system of shifts. Employees will then be paid for the actual hours they would have worked. The period that the employee is not engaged in full-time employment will be considered as unpaid leave. It is crucial to note that such measures will have to be implemented for a period not exceeding twelve months.

Communication with employees

As organisations contemplate changes in their systems there is a need to keep employees informed of the changes that may come.

Section 12D of the Labour Act discussed above, provides that employers are under an obligation to communicate all the changes they are making at the earliest possible opportunity. Such communication can be implemented electronically using such mediums as WhatsApp and emails.

Non-Discrimination of Employees

In certain countries, certain races have been subject of discriminatory and xenophobic attacks.

Mainly because the virus commenced in China discrimination against Chinese nationals has been rife across the world. Employers should remain wary of section 5 of the Labour Act which does protect employees against discrimination of any sort.

The Bottom Line

The bottom line remains that organisations will have to come up with innovative ways of responding to this virus. In the process of manoeuvring the inevitable, we need to keep ourselves informed of the provisions in our labour laws.

Our hearts go out to those who have been affected by the COVID-19 pandemic!


[i]                https://www.who.int/emergencies/diseases/novel-coronavirus-2019/events-as-they-happen

[ii]               https://www.worldometers.info/coronavirus/

[iii]               https://www.herald.co.zw/coronavirus-state-of-national-disaster/

997 Views
error: Content is protected !!