Does your business still need a Covid-19 policy?

It feels like a lifetime ago since the first case of Covid-19 was recorded in SA. This has left many businesses wondering if they should review existing policies for the year ahead. Employers may be wondering whether they are still required to have a Covid-19 policy in place, especially after the health minister’s media update in January.

In his statement of  January 10 Joe Phaahla shed light on the global trends relating to Covid-19, noting that in December there was a 25% increase in new cases (14.5-million) and a 12% increase in deaths (46,600) globally compared to November. The countries with the highest number of new cases were Japan, South Korea, the US, China and Brazil.

Collectively, these countries represented 70% of the total new cases. Because of these developments, countries have started imposing special requirements for travellers from China. Phaahla said SA would not be imposing such requirements. However, in light of the global increase in cases and deaths and after consultation with the ministerial advisory committees and World Health Organisation, the SA government intended to increase the rate of testing, to increase surveillance and reinvigorate the vaccination campaign.

Where does this leave existing Covid-19 and vaccination policies? To answer this we need to look at the legislative framework within which employers are required to operate. From a broad perspective, the Occupational Health & Safety Act places an obligation on employers to provide and maintain, as far as reasonably possible, a working environment that is safe and without risk to the health of its employees.

In addition to this general obligation employers may remember that when the Covid-19 state of disaster ended in 2022 a flurry of replacement regulations and guidance was launched. In February 2022 the government implemented guidance entitled “The Code of Practice: Managing Exposure to SARS-Cov-2 in the Workplace”. This is still in force. In addition, in March 2022 amendments were made to the Occupational Health & Safety Act regulations dealing with hazardous biological agents (one of which is Covid-19).

These regulations place an obligation on employers to identify such agents that could potentially affect employees, assess the risk associated therewith, and put control measures in place to mitigate or control these risks. In this regard the regulations require employers to conduct appropriate risk assessments and prepare action plans in respect of any risks identified.

The code of practice mirrors these obligations and states that every employer must undertake a risk assessment to give effect to its obligations under the act and in terms of the regulations; and on the basis of that risk assessment develop or amend its existing plan to include any measures to be implemented in respect of the vaccination of its employees and any other protective measures.

While the code of practice is merely a guideline and represents best practice, the regulations are legally binding in terms of the Occupational Health & Safety Act. This means an employer’s obligation to conduct Covid-related risk assessments has not fallen away, and employers should at the least be monitoring the situation to determine whether there is a potential or actual effect on health and safety in their workplaces.

If no risks are identified that require specific action — and concomitantly, an action plan under the regulations — it is arguable that it is not a legal requirement for employers to have a Covid-19 plan or policy, where the requirements of the code of practice have historically been housed in a policy-style document.

However, if the global trends in Covid-19 cases and deaths highlighted by the health minister are anything to go by, the pandemic is far from over. This is evident in SA’s increased infection rate over the past few weeks, and the government’s intention to increase testing, surveillance and the vaccination campaign. While there is no requirement for employers to have a Covid-19 policy, the Occupational Health & Safety Act and hazardous biological agent regulations still require employers to assess and mitigate the risks of Covid-19 in the workplace.

The code of practice is a guideline that employers should follow to ensure best practice. It is therefore important for employers to stay up to date with the latest developments around Covid-19 and ensure that where necessary they update their risk assessment and have an action plan in place to implement when required.

• Salt is an employment executive, and Pawson a candidate legal practitioner at ENS Africa