Following the announcement of the further extension of the national lockdown to the 17th May 2020, The Minister of Health published the Public Health (COVID – 19 Prevention, Containment and Treatment) (National Lockdown) (Amendment) Order, 2020 (No. 5) (Statutory Instrument 99 of 2020). This order must be read alongside the guidelines set by the Ministry of Health for mandatory employee testing for the re – opening of businesses.
Which businesses may resume operations?
The statutory instrument allows for businesses in the formal commercial and industrial sectors to resume operating. Businesses in the formal commercial and industrial sectors are described as any business, industry, trade or occupation (other than one currently operating as an essential service) dealing in goods or services for the generation of income or the making of profits.
Although this is wide definition, it is limited in its application.
Firstly, the order stipulates that the business must be regarded as belonging to the “formal commercial and industrial sectors.” All informal businesses are thereby automatically excluded.
Whether or not a business is formal is evidenced by one or more of the following:
Holding of a shop or other licence from a local authority enabling the operation of the business from a specified premises.
Being the lessee of commercial, industrial or business premises governed by the Commercial Premises (Lease Control) Act [Chapter 14:04], that is, any commercial property that is subject to the powers of the rent board.
Being a registered operator for the purposes of paying Value Added Tax (VAT).
Being registered an employer for the purposes of paying employees’ tax under the Income Tax Act or regularly making a return of income for the purposes of the Income Tax Act.
Being a party to a collective bargaining agreement negotiated through an Employment Council governing the business in question.
Therefore, for the business to be considered formal for the purposes of this order and thereby permitted to resume operating, it must be recognized and registered in the records of a regulatory body such as with the Zimbabwe Revenue Authority, an Employment Council or a Municipal/Regional Council. Any other business that is not so registered or recognized is informal and is prohibited from opening.
The burden falls on the person purporting that his business falls within the definition of formal commercial and industrial sector to prove it to the satisfaction of the enforcement officer. It is entirely in the discretion of any such officer to allow or disallow the business to continue to operate.
Secondly, a business may fall into the definition of a formal business as outlined above, but nevertheless still be prohibited from resuming operations if it falls within the definition of “public place” as defined in section 2 of Statutory Instrument 83 of 2020 which includes restaurants, tourist facilities, places of worship, clubs, recreational facilities, theatres, cinemas, shopping malls, flea markets and so forth. Any place of business that attracts large gatherings of people (more than fifty people) at any one time is prohibited from reopening for business even if it meets the definition of a formal business.
What are the conditions for resuming operations?
Once a business is permitted to resume operations, the following conditions must be adhered to. Failure to do so will result in the business being ordered to cease operations.
Testing
Every employer, employee or persons operating in a business must at the direction of an enforcement officer, submit to screening and testing for COVID – 19 before resuming work for the first time. Therefore, no person should resume working without having submitted to the appropriate tests.
It is the responsibility of the employers of a business to arrange with enforcement officers for the testing of employees to take place at an agreed time and place. An enforcement officer is described in section 2 of Statutory Instrument 77 of 2020 as:
A police officer, peace officer or member of the municipal police force.
The Chief Health Officer, every Director in the health service of any local authority, every district health officer of any district, every medical officer who is assisted by a police officer, peace officer or member of the municipal police force.
An area civil protection officer identified and authorized by the National Civil Protection Committee to act in the capacity of an enforcement officer and is under the guidance of a police officer, peace officer or member of the municipal police force.
The Ministry of Health has designated specific facilities for testing to be conducted and employers must arrange with the chosen facility for testing. The following is a list of all designated facilities:
All government health facilities
All mission hospitals
All municipality health facilities
New Start Centres
PSMI, CIMAS & Lancet Laboratories
Testing may also take place at the workplace, if the employer is able to arrange for that, particularly where the organization employs many employees. This is to avoid congestion at the health facilities.
Should testing be conducted at the workplace, employers must ensure that there is adequate space and conducive conditions for testing, that is, the rules of social distancing are observed, high levels of hygiene is practiced, there is privacy for testing and recording results and so forth.
Companies are being encouraged to procure the COVID – 19 rapid test kits themselves to expedite the testing process. The following test kits are recommended:
2019 – N – COV Rapid test kit,
Colloidal gold Assay.
World Health Organization (WHO) Prequalified test kits.
Once all employers and employees are tested, the business may resume operating the following day.
Daily working conditions
Every business is to operate between 0800hrs and 1500hrs, unless good cause is shown to an enforcement officer why the business should not follow these times.
Every employer and employee must observe social distancing rules (keep a distance of at least one metre from any other individual).
Every employer and employee must wear protective masks.
Every employer must make available hand sanitizing liquid for use by its employees and other persons.
Every business is subject to the inspection and direction of an enforcement officer at any time during normal working hours. Failure to allow an enforcement officer access to the premises of the business and/or failure to cooperate with an enforcement officer and/or comply with any order of an enforcement officer is an offence liable to a fine and/or imprisonment for a period of one year.
This article has been provided for informational purposes. For legal advice, please contact us.