Urgent update: extension of COVID-19 Temporary Employer / Employee Relief Scheme (“Ters”)

On 28 February 2021 President Cyril Ramaphosa announced that the Covid-19 Temporary Employer / Employee Relief Scheme (“TERS“) would be extended from 16 October 2020 to 15 March 2021. On 3 March 2021 the Covid-19 TERS Direction, 2021 (“Direction“) was published by way of Government Gazette. The Direction applies to –

• Employees who are contributors in terms of the Unemployment Insurance Fund Act 63 of 2001 (“Act“). The employers of such employees must have declared and paid for them; and
• Only to those employees whose employers are –
• • not permitted to commence business operations either partially or in full due to the Regulation published in terms of section 27(2) of the Disaster Management Act 57 of 2002 (“Regulation“) and provided they operate within a sector specified in Annexure A of the Direction. Annexure A is a list of the businesses/business activities within the major sectors which qualify for relief (the full Annexure A can be accessed at http://www.labour.gov.za/DocumentCenter/Publications/Unemployment%20Insurance%20Fund/ANNEXURE%20A%20to%20TERS%2016%20Oct%2020%20to%20March%2021.pdf).

• • unable to make arrangements for ‘vulnerable employees’, as defined. Vulnerable employees are those employees over 60 and/or those who have co-morbidities. Where an employer is unable to accommodate such employees or otherwise take other measures as contemplated in the Occupational Health and Safety Direction of 2 June 2020 (“OHS Direction“) then, subject to certain requirements being met, TERS can be claimed for such employees. Note, this is regardless of whether the employer operates within one of the industries specified in Annexure A or not.
    It should be noted that in order to apply for the benefit, employers with 50 or more employees must provide a report from a certified occupational health and safety officer confirming that the employees cannot be reasonably accommodated at work. Where an employer has 50 or less employees the employer must, in the absence of aforementioned report, submit an affidavit deposed to by the owner or senior manager of the business setting out the reasons as to why employees are unable to be reasonably accommodated.

• • unable to make use of their employees’ services, either fully or partially, because of operational requirements based on the economic, technological, structural or similar needs of the employer caused by the imposition of the Regulations or otherwise due to compliance with regulation 4(10) of the Regulations. In particular, the need to limit the number of employees at the workplace through rostering, staggering of working hours, short time and the introduction of a shift system.

• • Employees who are required to remain in isolation or quarantine in terms of the OHS Direction or a direction issued by the Minister of Health, following ‘high risk’ contact, as defined. This benefit is available irrespective of whether their employer operates in a sector specified in Annexure A. It is important to note that employees are not required to first exhaust their sick leave in order to claim the benefit in this regard. In order to prove than an employee was required to quarantine or isolate, the employer and the employee concerned must submit an affidavit stating that the employee had a high-risk contact. The employer’s affidavit must be attested to by the owner or senior manager. Supporting documentation as required by the UIF must be attached.

The payment of the extended benefits will be broken up into two ‘claim and payment iterations’: namely, from 16 October 2020 until 31 December 2020 (first period) and from 1 January 2021 until 15 March 2021 (second period).

In addition, and subject to the availability of sufficient credits, where employees are employed by employers who do not operate in the specified sectors and such employers cannot make use of their services, either fully or partially, as a result of compliance with the Regulations or directions made under regulation 4(10) of the Regulations then such employees shall be entitled to a reduced work time benefit in accordance with the Act.

The UIF has published guides and FAQ’s to assist in, among others, the application process. The names and accompanying links for the documents can be found below:

• “Frequently Asked Questions on COVID-19 TERS Extension”. This document can be accessed at http://www.labour.gov.za/DocumentCenter/Publications/Unemployment%20Insurance%20Fund/Frequently%20Asked%20Questions%20on%20COVID19TERS%20extension.pdf

• “Easy Aid Guide.” This document can be accessed at http://www.labour.gov.za/DocumentCenter/Publications/Unemployment%20Insurance%20Fund/EASY%20AID%20Guide%20Spreadsheet%20Application%202.pdf

• “TERS Updated letter (28/02/2021).” This document can be accessed at http://www.labour.gov.za/DocumentCenter/Publications/Unemployment%20Insurance%20Fund/TERS%20Extension%20Employer%20letter.pdf

• “A list of the Sector Divisions. This document can be accessed at http://www.labour.gov.za/DocumentCenter/Publications/Unemployment%20Insurance%20Fund/Section%20division%201.pdf

• A revised TERS Excel template. This document can be accessed at http://www.labour.gov.za/easy-guide-for-employers-on-covid19

The latest update can be found here.

by Jacques van Wyk, Director; Andre van Heerden, Senior Associate; and Lukrisha Ramadu, Candidate Attorney