Friday | 27 March | 2020
Section 8 of the Occupational Health and Safety Act, No 85 of 1993 (OHSA), requires every employer to create a work environment that is safe and to eliminate health risks for employees as far as reasonably practicable. This includes the following:
- Taking steps to eliminate or minimise any hazard or potential hazard;
- Providing information, instructions, training and supervision as may be necessary to ensure the health and safety of employees at work; and
- Maintaining measures as may be necessary in the interest of health and safety.
In terms of section 7 of the Employment Equity Act, No 55 of 1998, medical testing of employees is prohibited, but there are a couple of exceptions:
- If required of permitted by legislation.
- If it can be justified in light of medical facts, employment conditions, social policy, fair distribution of benefits or the inherent requirements of a post.
The question therefore is whether temperature measurement in the present circumstances falls under one of the said exceptions.
We know that it is not required by legislation at present. Interpretation may well determine that it may be allowed in light of the current medical conditions in our country.
Even should temperature measurement be justified in the present circumstances, employers should take note of issues concerning potential privacy, discrimination, safety in the workplace and workplace relations.
Here are some issues that employers should consider when implementing temperature measurement:
- Is there an increased risk of exposure in the business, such as operational vehicle activities, vulnerable employee populations, regular interaction with clients, or a restricted ability to introduce other social distancing measures?
- Could the employer achieve the same level of compliance and protection through voluntary as against compulsory temperature measurement?
- Would the implementation of temperature screening create more concern regarding employees or challenges to employee relations?
- Would employees who are excluded from the workplace, for example, be put on unpaid leave if they do not agree to temperature measurement, so they may be motivated to have their temperature measured?
- Does the employer have a reasonable plan in place for employees with a high temperature, such as immediate isolation from the workplace or instructions to undergo further medical care?
- Does the employee have a reasonable plan in place for employees who refuse to undergo temperature measurement, including denying access to the workplace or possible disciplinary action?
- Does the employer intend keeping record of temperature measurements? If so, employers should consider keeping such information confidential.
In summary, employers may therefore introduce rules to ensure a safe work environment, and may also impose conditions with regard to access to the premises.
It is therefore in the interest of every employee to obey these measures and to put their own safety and that of their colleagues first.
* All information was correct at the time of publication.