Beyond the needle

Medical testing within the workplace is a contentious issue. It can be an invasion of one’s constitutional rights. The question is whether an employer is entitled to request, or force, an employee to undergo medical testing and if so, under what circumstances?

Section 7 of the Employment Equity Act (EEA) governs medical testing. The EEA was promulgated to deal with unfair discrimination issues. Section 7 provides the employee with protection, primarily against employers who may want to use medical tests, or the results, to discriminate against an employee.

So what constitutes ‘medical testing’ in terms of the EEA? The definition is broad: “Any test, question, inquiry or other means designed to ascertain, or which has the effect of enabling the employer to ascertain, whether the employee has ANY medical condition.” This means an employer may not enquire on the medical status of an employee for ANY condition, even alcoholics or employees with a history of drug abuse.

Section 7(1) of the EEA prohibits the medical testing of employees. It does, however, provide instances where medical testing would be permissible. The first is where medical testing is legislated and thus mandatory. The second, section 7(1)(b), states: “It is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of the job.”

Some positions may require the employee to undergo a medical examination at the outset of employment and again when leaving, such as in the mining and petrochemical sectors. In these instances it is normally disclosed to prospective employees beforehand and is in the contract of employment.

The problem comes when the employer wants to test the employee during the course of employment. By law the employee can refuse, without fear of reprisal, to undergo medical testing. The employer has to show that the requirements of the job, or social policy, require it. It is the words ‘social policy’ that employers rely on to do testing for alcohol and drug abuse. I would argue that this is legal in the correct context and only with the consent of the employee.

Under no circumstances is an employer to test for HIV/AIDS without the sanction of the Labour Court and this permission is not easily granted.

When an employer requires an employee to undergo medical testing the question must be asked, ‘Why?’ If the employer cannot give a coherent or valid reason, one could reject their request.

Questions & Answers

Does the prohibition of medical testing only apply to HIV/AIDS? 

No. It applies to any form of medical testing. Medical testing is defined in the EEA. Even questioning an employee on their medical status is considered testing.  

I have cancer. Am I obliged to disclose this to my employer and, if so, can they ask me to disclose my medical records?

No and no. You can elect to disclose your cancer and/or your medical records to your employer. I would argue that, only when your health starts to affect your ability to perform your duties, does the employer gain an entitlement to be informed. 

My employer wants all staff to undergo medical testing for drug abuse; can they compel me to undergo the testing?

Your employer cannot force you to undergo testing – BUT – your refusal may lead to a negative inference against you. I would check the contract you signed and the company disciplinary code. It may be that your consent to such testing has already been given. 

My contract of employment states that I consent to medical testing, Is this legal?

Yes, but the employer cannot automatically compel you to undergo testing. The employer still has to comply with Section 7 of the EEA and justify the nature and extent of the testing. If you are not sure, it is your right to seek legal advice and require reasons from the employer for the testing.

Written by Charles Bailie