Retention of records under COVID-19
On 15 March 2020 the President invoked the Disaster Management Act (¹) declaring a national state of disaster in order to deal with the effect and severity of the outbreak of the Coronavirus Disease 2019 caused by the SARS-CoV-2 virus, commonly referred to as COVID-19.
The Minister of Employment and Labour then issued a directive: The COVID-19 Occupational Health and Safety Measures in Workplaces (²). The Department of Employment and Labour directed employers to apply the prescriptions of the Occupational Health and Safety Act (³), in particular the Regulations for Hazardous Biological Agents (RHBA) (4), which governs workplaces in relation to COVID- 19.
This directive aimed to minimise the spread of the virus in the workplace, while the RHBA is a little more specific in that it aims to ensure that the exposure to infection is prevented or adequately controlled.
2. Symptom Screening
Section 21 of the Directive requires the employer to perform scanning for possible fever as well as screening for observable symptoms associated with COVID-19. In addition, if required to do so, medical surveillance and testing may be required.
The RHBA requires that all records of assessments (incl. risk assessments) monitoring results and medical surveillance be kept for a minimum period of 40 years.
It should be noted that the RHBA is not the only legislation which requires records to be kept for 40 years. Other regulations include the Asbestos Regulations, Lead Regulations, Hazardous Chemical Substances Regulations, Noise Induced Hearing Loss Regulations, as well as Mines Health and Safety Act. The same retention terms are used in the UK.
Records are important because they allow for a nexus between exposure and any health effects.
It stands to reason that if a person is tested positive, the records will be required by the Department of Health and the National Institute of Communicable Diseases (NICD) to perform tracking and tracing of infected persons under investigation.
4. How should the records be kept
Records may be kept in any format, provided they are kept readily accessible and retrievable at a reasonable time for examination.
Health records (or copies thereof) should be kept by the employer for 40 years after the date of the last entry. This is because often there is a long period between exposure and onset of ill health, e.g. silicosis, pneumonia, or tuberculosis.
Protection – You may want to keep hardcopy records with files in storage containers with environmental concerns (moisture, temperature, etc.) in place. For electronic records, be sure to include how the data is backed-up regularly.
Disposition – Determine how you will dispose of records when scheduled. For confidential records, be sure you are explicit about how you intend to destroy the records.
5. Confidentiality of records
The Protection of Personal Information Act, (POPI) (5) promotes the protection of personal information by public and private bodies.
There is a common-law duty to preserve professional confidence.
The Constitution guarantees citizens the right to privacy, including the right not to have the privacy of their communications infringed.
(1) 57 of 2003
(2) Directive no. 479 of 29 April 2020, GG 43257
(3) 85 of 1993
(4) 27 December 2001
(5) 4 of 2013