Statutory risk control and Covid-19

The first step of any statutory risk control programme is to identify the relevant regulations. Sadly, this is where the problem starts. Since regulations are laws, it should be easy to find a way to ensure compliance … In reality, though, it’s far from easy

Tom Bingham, Baron Bingham of Cornhill, the Lord Chief Justice of England and Wales, was invited by Cambridge University to deliver a lecture on a subject of his choice … and it changed his life. He had decided to pick what he thought would be an easy topic – the rule of law. To his amazement, he discovered that he did not know what the rule of law meant; nor, he discovered, did anyone else. So, not only did he deliver the lecture but he went on to write a short book on the subject. (It was the last book he wrote before he died.)

In his book, The Rule of Law, he dealt with “the finding of regulations”. Bingham noted that no one can be confident that they have found the right regulations, citing a case where the state relied on a regulation to declare property forfeit to the state if a particular set of circumstances were shown to exist. A substantial sum was involved.

The lower court ruled in favour of the state, declaring the property forfeit. The High Court heard the appeal and when the case was completed, the judges indicated that they would rule in favour of the state and went into recess to write their judgement. Then, however, it was discovered that the regulations, which the state relied upon, had long since been repealed and replaced. The regulations no longer existed! Lord Bingham drew attention to the difficulties in knowing what regulations exist, if indeed they do, and, if they did exist at one time, if they still existed. He did not assign any fault to anyone for this bizarre state of affairs; he merely accepted this to be the reality. Finding the relevant regulations may be a challenge.

Given this background, let us look at statutory risk control and the issue of Covid-19. The basic object is to ensure that regulatory requirements governing Covid-19 are implemented. The implementation is supposed to be practical in order to deal with the Covid-19 risk. The regulations should be complementary to what an enterprise should be doing in any event to manage risk. In turn, what the enterprise should be doing is informed by professionals in the field.

In dealing with Covid-19, a health and safety matter, one would think the legislative requirements would be found in the Occupational Health and Safety Act (OHSA) 85 of 1993 and its regulations. In practice this is not so. Instead, Covid-19 regulations are found in proclamations issued in terms of the Disaster Management Act. These regulations are, of course, in addition to any existing regulations that may be relevant.

Let us start with the OHSA itself. There are some general provisions in the Act that can be applied to the Covid matter. These are subsection 8(1) and 8(2). These are general sections, however, and they say nothing about Covid-19.

Section 8: General duties of employers to their employees:

(1) Every employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees.

This provision tells us nothing that we do not already know, and says nothing at all about Covid-19. It is also irrational, since there is no such thing as an environment “without risk”.

(2) (b)   taking such steps as may be reasonably practicable to eliminate or mitigate any hazard or potential hazard to the safety or health of employees, before resorting to personal protective equipment.

Again, the section says nothing that’s not already known and nothing about Covid-19. These two sections do highlight a problem that needs urgent attention. They are being used by companies to make it mandatory for employees to get vaccinated.

These sections are too broad and create uncertainty as to employers’ obligations.

Workplace preparedness – Covid-19 March 20, 2020

On March 20, 2020, the Department of Employment and Labour issued a 12-page document entitled Workplace Preparedness Guidelines. This document contains general information that would be well known by most persons who have lived through the different stages of lockdown.

Disaster Management Act 57 of 2002: R.639 Government Gazette 43400 June 4, 2020

On June 4 “Consolidated Covid-19 Direction on Health and Safety in the Workplace” was issued.

Disaster Management Act 57 of 2002: R.499 Government Gazette 44700 June 11, 2020

Seven days later an additional set of regulations was issued – the consolidated directions on occupational health and safety measures in certain workplaces.

Disaster Management Act 57 of 2002: R.1030 Government Gazette 44700 October 1, 2021

Later another set of consolidated directions on occupational health and safety measures in certain workplaces was issued. These directions refer to other existing regulations such as the Hazardous Biological Agents Regulations.

Regulations for Hazardous Biological Agents Government Gazette 22 956 December 27, 2001

Since the virus seems to be similar to biological agents, not surprisingly some officials decided to drag these regulations into the picture – amounting to 68 pages.

Specialised health risk assessment for workplaces (by employers and self-employed persons), issued by the Department of Employment and Labour May 2020

Almost inevitably someone would mention risk assessment, which led to the emergence of risk assessment documents that companies must use. And the list goes on and on!

Conclusion

So, an ever-increasing pile of regulations is appearing at an alarming rate. Some of these are so general (such as Section 8 of the OHSA) that they provide no specific guidance on the steps to be taken to manage the Covid-19 risk, but nonetheless, there is no shortage of regulations.

A hundred or so years ago a legislator famously declared: “We are all socialists now, you know.” It appears the modern mantra can now be “We are all lawmakers now, you know.”