Employers have a duty to uphold an employee’s privacy regarding his or her health. At first glance, the duty to protect an employee’s private information is not problematic, however, the current regulations relating to Covid-19 has complicated the issue.  Employers are faced with the challenge of balancing an employee’s right to privacy concerning his or her health status with the obligation to maintain a safe and healthy working environment.


In light of the various regulations aimed at containing the spread of COVID-19, it will be challenging for employers to strike a perfect balance between these obligations. Once an employee has tested positive for COVID-19, the conundrum arises as to whether the identity of the infected employee can be disclosed in the workplace.


The COVID-19 pandemic has been declared a National Disaster, and accordingly, many South African’s Constitutional Rights have been infringed upon in order to contain the pandemic. We have had to come to terms with restrictions on, inter alia, our Right to Freedom of Movement, Freedom of Trade and Right to Occupation, all being affected in one way or another. Although employees’ right to privacy has also been limited as a result of the obligation to report his or her status to the Department of Health and Department of Employment and Labour, employers may only under limited circumstances, disclose health-related information of an employee to a third party.


In circumstances where it is necessary to disclose health-related information of the employee to a third party, it is advisable to obtain the written consent of the employee. Information regarding an employee’s health is regarded as personal information which enjoys the protection of the Protection of Personal Information Act (POPI), and the disclosure of such information is strictly regulated by the Act.


If the purpose of disclosing health-related information of an employee is, for example, to investigate the spread of the virus within the workplace, the employer may launch the investigation without disclosing the infected employee’s identity in the absence of any consent. The employer will be permitted to disclose relevant information which will place other employees in a position to evaluate their risk of contamination without identifying the infected employee. Employers will also be able to direct the workforce or the relevant section of the infected employee to undergo testing for COVID-19 in order to determine infection in the workplace.


In the light of the above, it is thus advisable, in order to circumvent any culpability in a potential unfair discrimination or victimisation dispute, to obtain voluntary consent from the infected employee to disclose his or her health status to all employees who have been in his or her contact during the 10 day incubation period.