Written by: Freedom of Religion South Africa (FOR SA)
Article source: forsa.org.za

From 1 June 2020, churches and other religious organisations are allowed (subject to certain strict conditions) to re-open both for work, and for worship. The right and opportunity to “self-regulate”, clearly comes with a responsibility to proceed with great diligence and caution. Every effort has to be made to comply with the necessary legal obligations and protocols, to prevent unnecessary exposure and risk of members and the public at large.

It is important that members and congregants understand that each one of us has a responsibility to adhere the legal obligations and protocols, to prevent unnecessary spreading of the virus. Ultimately however, the responsibility rests on religious leaders and/or persons in charge of religious organisations, to ensure full compliance. Failure to comply, exposes the religious organisation and its leaders to legal risk in the form of criminal charges and/or civil claims.

The purpose of this document (comprising of a separate PART A, and PART B) is to assist churches and other religious organisations in their understanding and implementation of the Level 3 Regulations and Labour Directives issued in respect of the workplace (see PART A), and the  Directions issued in respect of religious gatherings (PART B). When the Regulations for tertiary education are published, we will also prepare a guideline for bible schools.

Note that this document does not in any way replace, or address all the legal requirements arising from, the Level 3 Regulations, Labour Directives and Directions in respect of religious gatherings. It thus remains imperative for every church and religious organisation to familiarise themselves with
the Level 3 Regulations, Labour Directives and Directions in respect of religious gatherings (and any other similar notices that Government may issue), and to ensure legal compliance with every aspect thereof.

Background:
On 28 May 2020, the Minister of Cooperative Governance and Traditional Affairs issued Regulations for Alert Level 3, applying nationally from 1 June 2020 (“the Level 3 Regulations”). The effect of the Regulations is that all businesses and institutions, except those specifically mentioned in Table 2 of the Level 3 Regulations, may commence operations (although all persons who are able to work from home, must still do so).

This means that at Level 3, churches and other religious organisations are able to start operating, and that employees are permitted to – in phases, and subject to strict compliance with health protocols and social distancing measures – return to the office. Employees are also allowed, in the course of
carrying out their work responsibilities, to travel between provinces, metropolitan areas, districts and hotspots – provided however they are in possession of a Form 2 permit issued by their employer. For some Frequently Asked Questions with regards to what this means for churches and other religious organisations as places of work, see PART A hereof.

In addition to the above regulations in respect of the workplace (i.e. to the extent that the church or religious organisation has an office, and/or persons in its employ), the COGTA Minister on 28 May 2020 also issued Directions in respect of places of worship (i.e. to the extent that religious gatherings take place at the church or religious organisation). These Directions, likewise, apply nationally from 1 June 2020. For some Frequently Asked Questions with regards to what the Directions mean for
churches and other religious organisations as places of worship, see PART B hereof.

PART A: PLACE OF WORK
Q: Can the church office re-open and start operating again?
A: Yes. While the Level 4 Regulations stated that religious buildings must remain closed (Clause 24(1)), that restriction has been removed in the Level 3 Regulations. Also, in terms of the Level 3 regulations, every sector can return to work except those specifically mentioned under “specific economic exclusions” (Table 2: Alert Level 3). These “specific economic exclusions” do not include the religious sector in any way.

Q: “Must” the church office re-open and start operating again?
A: No. The Level 3 Regulations state that “businesses and other institutions may operate except those set out in Table 2”. Ultimately therefore, it is up to every church or religious organisation to decide when they will open up again.

Q: Can all employees return to the office?
A: The Level 3 Regulations state that, as a starting point, all persons who are able to work from home must (continue to) do so. However, employees may work outside of their homes (including therefore from the office), and travel to and from work, and for work purposes under Alert Level 3, subject to the following conditions:

– Employees must return in phases, to get the workplace COVID-19 ready. (Note that in terms of the Regulations, religious organisations with more than 100 employees must, where possible. make provision for minimising the number of employees at the workplace at any given time through rotation, staggered working hours, shift systems, remote working arrangements or similar measures, in order to achieve social distancing and to limit congestion in public transport and at the workplace – Clause 46(2)).

– Strict compliance with health protocols and social distancing measures (as set out in the Regulations, any Directions issued by the Minister of Labour, as well as any labour and occupational health and safety legislation that may apply – Clause 46(4));

– The return to work being done in a manner that avoids and reduces risks of infection.

(Table 2: Alert Level 3).
Q: “Must” all employees return to the office?
A: Again, as a starting point, all persons who are able to work from home must (continue) to do so. In terms of the law however, if an employer requires an employee to work from the office, and has provided all relevant instruction, health and safety protocols and personal protective equipment (PPE) to safeguard employees, an employee has to have a “reasonable justification” based on objective criteria, to not attend at work. Note in particular that, in respect of employees who are over 60 or who have co-morbities, employers must implement measures to facilitate their safe return to work, which may include special measures at the work place to limit their exposure to COVID -19 infection and where possible that the employees work from home. (Clause 46(5) of the Level 3 Regulations).

Q: What must we do, from an administrative and practical point of view, to get the office ready?
A: There are some very specific things that, by law, a religious organisation has to put in place, before the workplace will be COVID-ready and any employee/s can return to work. Although, legally therefore, it is possible for the office to re-open and employees to return to work, the question is whether practically your church or organisation is ready and is able to comply with all the legal requirements set out in the Regulations and the COVID-19 Direction on Health and Safety in the Workplace issued by the Minister of Employment and Labour on 28 April 2020 (“the H&S Directive”).

Q: What are the administrative things that need to in place before employees can return to work?
A: From an administrative perspective, the person “in control of” the religious organisation must designate a COVID -19 compliance officer, whose name must be prominently displayed in the office in a visible area (Clause 47(2)(b) of the Level 3 Regulations). The Compliance Officer’s
job is to:

1. Develop a plan for the phased -in return of their employees to the workplace, prior to reopening the workplace (“workplace plan”). This plan must correspond to Annexure E of the Level 4 Regulations, and must be retained for inspection and must contain the following information:

– which employees are permitted to work;
– what the plans for the phased -in return of their employees to the workplace are;
– what health protocols are in place to protect employees from COVID19; and
– the details of the COVID -19 compliance officer;
– phase-in the return of their employees to work to manage the return of employees from other provinces, metropolitan areas and districts; and
– develop measures to ensure that the workplace meets the standards of health protocols, adequate space for employees and social distancing measures for the public and service providers, as required (Clause 47(1)(b) of the Level 3 Regulations).

2. Oversee the implementation of the workplace plan, as well as adherence to the standards of hygiene and health protocols relating to COVID -19 at the workplace (Clause 47(1)(a) of the Level 3 Regulations).

3. We also recommend that the person “in control” of the religious organisation, or the Compliance Officer, confirms with the organisation’s insurer whether the organisation is insured against any legal claims by employees / congregants / members of the public who may contract COVID-19 as a result of being in/or the organisation’s premises or in contact with its employees/leaders. (From a legal risk point of view, organisations may also want to consider having their employees sign an indemnity in this regard).

*Annexure E to the Level 4 Regulations (which continues to apply at Level 3) says that a COVID-ready workplace plan must be developed prior to the reopening of any organisation employing persons or serving the public. For small organisations, the plan can be basic reflecting the size of the organisation. For medium and large organisations however, a more detailed written plan should be developed, given the larger numbers of persons at the workplace, and should include:

– The date the organisation will open and the hours of opening;
– The timetable setting out the phased return-to-work of employees, to enable appropriate measures to be taken to avoid and reduce the spread of the virus in the workplace;
– The steps taken to get the workplace COVID-19 ready;
– A list of staff who can work from home; staff who are 60 years or older; and staff with comorbities who will be required to stay at home or work from home;
– Arrangements for staff in the establishment:

(a) sanitary and social distancing measures and facilities at the entrance and exit to the workplace;
(b) screening facilities and systems;
(c) the attendance-record system and infrastructure;
(d) the work-area of employees;
(e) any designated area where the public is served;
(f) canteen and bathroom facilities;
(g) testing facilities (for organisations with more than 500 employees);
(h) staff rotational arrangements (for organisations where fewer than 100% of employees will be permitted to work).
– Arrangements for members of the public, including sanitisation and social distancing measures.

Q: What are the practical things that need to be in place before the workplace is COVID-ready?
A: In terms of the H&S Directive,

– Every employer must ensure minimal contact as far as possible, and ensure a minimum of 1.5 metres between workers at their work stations. If not practicable to space out workstations 1.5 metres apart, then the employer must arrange physical barriers or give free personal protective equipment (PPE). Social distancing measures also apply to the common areas, including queue control at canteens and toilets where applicable. (Clause 17).

– Because religious organisations are typically open to members of the public, every employer must also ensure that there is a distance of at least 1.5 metres between workers and members of the public, or between members of the public. Again, this must be done by putting in place physical barriers, or providing workers with face shields or visors. If appropriate, nonemployees must undergo symptom screening upon entering the workplace, and all members of the public (including suppliers) must be required to wear masks inside the premises. If appropriate, notices must be displayed advising non-employees of the precautions they must
observe while in the workplace. (Clause 37).

The H&S Directive also contains further requirements with regards to:
– Sanitizers, disinfectants and other hygiene measures (see clauses 25 – 29);
– The provision of cloth masks to employees, to be worn at all times (see clauses 30 – 35);
– Proper ventilation in the workplace (clause 38);
– Additional personal protective equipment (PPE) (clause 39). Where, however, a religious organisation employs less than 10 employees (“a small organisation”), the following measures only apply:
– Arrange the workplace to ensure that employees are at least 1.5 metres apart, or if not practicable, place physical barriers between them to prevent the possible transmission of the virus;
– Ensure that employees that present with symptoms are not permitted to work, and immediately contact the COVID-19 hotline (0800 02 9999) for instructions and direct the employee to act thereon;
– Provide cloth masks or require an employee to wear some form of cloth covering over their mouth and nose while at work;
– Provide each employee with hand sanitizers (containing at least 70% alcohol), soap and clean water to wash their hands and disinfectants to sanitize their workstations. (Paper towels only should be provided to dry hands – no cloth towels);
– Ensure that each employee while at work washes with soap and sanitizes their hands; and
– Ensure that their workstations are disinfected regularly; and
– Take any other measures indicated by a risk assessment. (Clause 14 read with 40) Only after all of these things have been done, will a workplace be COVID-19 ready and may employees return to work.

Q: From an employment law perspective, what administrative measures must an employer take?
A: In terms of the H&S Directive, every employer must:

– Do a risk assessment;
– Notify all employees of this Directive, and how it intends to implement it;
– Notify all employees that if they’re sick / have symptoms, they must stay home and take paid sick leave;
– Appoint a manager to address employee concerns and to keep them informed;
– Ensure that the measures in the H&S Directive are strictly complied with through monitoring and supervision;
– As far as practicable, minimise the number of workers at workplace at any time through rotation, staggered working hours, shift systems, remote working or similar;
– Take measures to minimise contact between workers, and workers and the public;
– Provide workers with information that raises awareness;
– If a worker has been diagnosed, inform the Department of Health and Department of Labour, and investigate the cause; and
– Give administrative support to contact-tracing by the Department of Health. (Clause 16).

Q: From a health and safety perspective, what are the requirements on an employer?
A: The H&S Directive requires that every employer must take measures to:

– On arrival for work, screen any employee (including contractors, and volunteers) for observable COVID-19 symptoms, namely fever, cough, sore throat, redness of eyes, or shortness of breath / difficulty in breathing. (Clause 21.1). (This may require the purchasing of temperature check devices).

– Require every employee to report whether they suffer any additional symptoms, including body aches, loss of smell / taste, nausea, vomiting, diarrhea, fatigue, weakness or tiredness.

(Clause 21.3) (Employees must also immediately inform the employer if they start experiencing any of these symptoms, in which case the employer has certain obligations as set out in Clauses 22, 23 and 24).

In order to comply with the above, it is recommended that the Compliance Officer prepares an attendance register, including a symptoms assessment, to be completed by every employee on attendance at the workplace. These records need to be kept for a period of at least six (6) months.

Q: Must employees have permits to travel to and from work?
A: In terms of the Level 3 Regulations, permits are not required for employees who live and work in the same area. However, permits are required for employees who need to travel between provinces, metropolitan areas, districts and hotspots – either when they travel to and from work; or when they travel in the course of carrying out their work responsibilities or performing their services under Level 3 (Clause 33(4)(a)).
The Permit has to be issued by the head of the institution, on a form that corresponds with Form 2 of Annexure A to the Level 4 Regulations. (This normally requires that the Form would be placed on the church’s or religious organisation’s letterhead, with an official stamp). The
employee has to carry the Permit, and his/her I.D. document, with him/her at all times.

In order to avoid any potential issues however, it may be wise to issue permits to all employees.

Q: At Level 3, can pastors / religious workers travel between provinces, metropolitan areas, districts and hotspots to do their work?
A: Yes. The Level 3 Regulations allow movement of persons between provinces, metros, districts and hotspots only in certain specified circumstances, including when persons travel “in the course of carrying out work responsibilities or performing any service permitted under Level 3”. The only condition is that the employee must have a Form 2 Permit. (Clause 33(4)(a)).

Again, the important question is whether it is necessary for the employee to travel to carry out his/her responsibilities or to perform his/her services as a pastor or person employed by a religious organisation. If it can be done in another way (e.g. via the phone, or a virtual meeting), that is “first prize”.

Q: Can we have staff, or other, meetings at the office?
A: While “gatherings” generally remain prohibited under Level 3, the Regulations permit “gatherings” at a workplace for work purposes (Clause 37(1)(c)). This means that staff meetings, and other meetings such as prayer or counselling meetings, can take place at the office, subject however to strict social distancing and health protocols being observed.

In this regard, note also the Directions for religious gatherings, issued by the COGTA Minister on 28 May 2020. In terms of the Directions, “where places of worship remain open to the public for visits, prayer or counselling, the provisions of [the] Directions apply” (Clause 8(5)).

Q: Can employees who do not work from the office, but from home, have work-related meetings at their house?
A: If the employee’s office is at his/her house, and that is his/her place of work, in terms of the Regulations, then there should not be an issue with having a “gathering” at his/her house for work purposes (Clause 37(1)(c)), subject however to the very same strict social distancing and health and protocols that apply to other workplaces as set out in the Level 3 Regulations.

Note however that, while on a strict interpretation of the Regulations, this is a legal possibility, work-related meetings at one’s house is not without legal risk. This is because social gatherings remain prohibited at Level 3, and a gathering of people at a house is very likely to attract the attention of neighbours or the Police, who may well suspect that a “social gathering” rather than a work-related meeting is taking place, and find reason to investigate.

Unless you are then able to prove (for example by showing that your office is in fact at home, or otherwise) that your home is indeed your workplace, and that the meeting is for work purposes, the “gathering” may be viewed as an illegal gathering, with possible criminal consequences. In the circumstances, employees are best advised to have all meetings (including meeting with other pastors / leaders, and/or counselling meetings) at the office of the church or religious organisation.

Q: Can pastors / religious workers counsel people at Level 3?
A: Yes. In President Ramaphosa’s speech on 28th May 2020, he indicated that religious leaders would be recognised as “essential workers” for purposes of spiritual counselling. This was also confirmed by the COGTA Minister’s media statement dated 29 May 2020, as follows:

“government is now in a position to categorise religious counselling as an essential service. This will enable the millions who have been affected by the virus, to receive this much needed service, since the majority cannot afford professional attention of this nature”. The problem, however, is that neither the Level 3 Regulations nor the Directions for religious gatherings, explicitly recognise religious leaders as “essential workers”. As a result, should any area move back to Alert Level 4 or 5 (as contemplated in Clause 3 of the Level 3 Regulations), the religious workers in that particular area may no longer be able to fulfil their tasks and functions amongst their members and/or the communities they serve, as “essential workers”.

This is presumably not what was intended, as spiritual counselling is no less necessary nor “essential” – and is arguably even more necessary and “essential” – if/when the infection, sickness and (even) death rate increases amongst its members and communities increases.

Many South Africans will grieve, and have to come to terms with, the death of loved ones – and it is then that religious leaders are most needed and valued.

In the circumstances, FOR SA has written to the Minister to recommend that the Regulations be amended to explicitly include “spiritual counselling” as an “essential service”, and to bring it in line with what the President and the Minister had already announced.

Q: Is a permit required for spiritual counselling?
A: Although this is not explicitly provided for in the Regulations or Directions, we recommend that the head of the institution issues pastors / religious leaders involved in spiritual counselling with a permit that corresponds to Form 2 of Annexure A to the Level 4 Regulations. This will confirm, and serve as proof, that the pastor / religious worker is recognised / employed by the religious organisation, and needs to travel (including between provinces, metros, districts and hotspots) in the course of carrying out his/her work responsibilities or performing his/her services (including but not limited to spiritual counselling), which are permitted under Level 3. (See Clause 33(4)(a) of the Level 3 Regulations).

Q: Where can / should spiritual counselling be done?
A: The Regulations and Directions are silent in this regard. From a (legal and health) risk point of view, we recommend that – as far as possible – counselling happens at the church or office of the religious organisation. This would avoid any suspicion that an illegal “social” gathering is happening either at the religious worker’s, or the counselled person’s house.

Where this is not possible, we recommend that the counselling be done at the religious worker’s “home office” (which, from a legal perspective, is closer to a religious building or office), alternatively at the house of the person receiving the counselling.

Common sense should prevail however, taking into account in particular which place – from a health point of view – poses the least risk of exposure to all involved. For this reason, and to enable them to make the best decision in this regard, pastors / religious workers are advised to do a symptoms assessment with the person/s who will be receiving the counselling, prior to the appointment.

Q: What documentation, if any, should be completed during counselling?
A: Again, while the Regulations and Directions are silent in this regard, it would be wise – from a legal, and health risk perspective – to complete certain documentation at every counselling appointment.

In this regard, we recommend that the head of the institution draws up a standard counselling form to be provided to every pastor / religious worker who has been issued with a “counselling permit” as recommended above. The Form should indicate:

– the name/s of the pastor / religious worker performing the counselling;
– the name and surname, I.D. or passport number, and full contact details of the person counselled;
– the address where the person is counselled;
– the names and contact details of any persons living with the person who is receiving the counselling.

In addition, the Form should include a symptoms assessment of the person who is receiving the counselling. In particular, he/she should declare in writing whether he/she suffers from any of the following symptoms: fever, cough, sore throat, shortness of breath, difficulty breathing, body aches, loss of smell or taste, nausea, vomiting, diarrhoea, fatigue and/or weakness.

Every completed Counselling Form should be safely kept for a period of no less than six (6) months.

Q: The church or religious organisation runs a playschool / crèche / early childhood development centre. Can it re-open?
A: In terms of an announcement by the Department of Social Development (DSD), all early childhood development centres (ECDCs) and partial-care facilities (including therefore playschools and créches that are not registered as ‘schools’ with the Department of Education) must remain closed until further notice.

Q: May the restaurant / coffee shop at the church re-open?
A: At Level 3, restaurants and coffee shops are allowed to open for take-away or delivery, but not for sit-down. As long therefore as no one sits down to eat / drink in the church’s restaurant or coffee shop, but merely collects for take-away, it should not be a problem – subject to all
the above-mentioned social distancing, sanitation and hygiene protocols being in place.

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Date published: 06/06/2020
Feature image: beta.freelyphotos.com

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