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.