Monday | 06 April | 2020
My work now has a policy that if you were off sick with flu or a cold you may only return to work if you can produce the results of a test confirming that you do not have Covid-19. I cannot afford the test that costs R1 200. I am healthy and all I want to do is to return to work. Can my employer oblige me to go for a test at my own cost?
Medical testing of employees is regulated in terms of section 7 of the Employment Equity Act (No 55 of 1998) which provides as follows:
“7. Medical testing.–(1) Medical testing of an employee is prohibited, unless–
- legislation permits or requires the testing; or
- it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the requirements inherent to a job.
Therefore, it would only be permissible to send an employee for medical testing if one of the following grounds for justification is met:
- the testing is regulated by specific legislation; or
- the testing can be justified by medical facts, working conditions, social policy or the requirements inherent to the position.
By declaring the Covid-19 outbreak a national disaster in terms of the Disaster Management Act, as amended, the President has wide powers to institute measures to control and prevent the effects of any disaster, in this case the Covid-19 pandemic. The regulations have meanwhile been gazetted by the Minister of Cooperative Governance and Traditional Affairs.
In terms of Regulation 4 no person may refuse to subject him/herself to testing if so required by an enforcement officer (a member of the South African Police Service, a member of the South African National Defence Force or a peace officer) if such person has been in direct contact with a Covid-19 carrier or has presumably contracted Covid-19.
Therefore, current legislation and applicable Regulations do not make provision for employers to force employees to be tested for the virus.
In terms of the second ground for justification, the employer must be able to justify the tests on the grounds of medical facts, working conditions, social policy or as a result of the requirements inherent to a job.
The Occupational Health and Safety Act obliges an employer to ensure as far as is reasonably and practically possible a workplace that is safe and free of any risk to the health of the employees (section 8(1)). In the context of Covid-19 there is a clear obligation on the employer to control and manage the transmission of the virus.
If an employee shows symptoms of the virus it would not be unfair of an employer to force an employee to go into self-isolation for as long as the symptoms last.
However, the National Institute for Communicable Diseases (NICD) has announced qualifying criteria for testing persons for Covid-19. The criteria are as follows:
- The person concerned must first consult a medical doctor; and
- The person concerned must have a serious acute respiratory condition with fever, or a history of fever and coughing with pneumonia; or
- The person concerned must have acute respiratory distress syndrome (based on clinical tests or X-ray results) requiring his/her hospitalisation; and
- The person concerned must have a documented travel history within 14 days prior to the onset of symptoms to any country where Covid-19 has spread; or
- The person concerned must have had direct physical contact with a person who already had symptoms of the virus and tested positive for the virus; or
- The person concerned must have had direct physical contact with a patient who received treatment for severe acute respiratory conditions.
At present, therefore, not every person may be tested for the virus, and an employer will not be in a position to force an employee to subject him or herself to tests if he/she does not meet the above requirements.
In the case of EWN v Pharmaco Distribution (Pty) Ltd (2016) 377 ILJ 449 (LC) the Labour Court held that a provision in an employee’s employment contract that forces him/ her to go for medical tests that cannot be justified in accordance with the grounds for justification as contemplated in the Employment Equity Act, is illegal and cannot be enforced given that the Act does not make provision for employees to consent to medical testing. It will only be allowed in circumstances that comply with the provisions of section 7.
* All information was correct at the time of publication.