The COVID-19 pandemic has been declared a National Disaster, and as a result, some South African’s Constitutional Rights have been infringed upon to contain the pandemic. The pandemic has also had a devastating effect on our economy, and this “new normal” has become a way of life.
Whilst employers have the duty to uphold employees’ right to privacy relating to health, they also have the challenge to balance that right with the obligation to maintain a safe and healthy work environment. How has the Disaster Management Act, 2002? (COVID-19) impacted our daily lives in accordance with the Labour Law and Labour relations?
South Africa was not alone in following a statutory rather than a constitutional route to justify the various constitutionally protected fundamental rights (freedom of movement, religion, assembly, trade, etc.). One implication of the government’s choice was that, constitutionally, fundamental rights could only be limited in terms of the disaster management measures “to the extent that the limitation is reasonable and justifiable in an open and democratic society.”
The President had stipulated at the beginning that some fundamental rights could be, in effect suspended, in the case of the declaration of the state of emergency. In a Labour relations sense, new operations would be a new normal such as health statuses (COVID 19) of employees’ being investigated to protect employees and maintain a safe and healthy environment.
There are alternative ways of dealing with information regarding an employee’s COVID status. Once an employee tests positive, it is the employer’s duty to investigate and track where it could have originated. With that, the employer might have to ask employees to monitor themselves and to observe protocol. However, the employee should consent to the disclosure of the COVID status.
Certain circumstances might require employers to disclose health-related issues to a third party, such as when an employee who test’s positive for (COVID 19) has been in contact with other employees.
An employer’s request for the disclosure of medical health should always be for a legitimate interest and monitor employees’ ability to attend work on a regular basis. The employer may accommodate the employee if need be.
In conclusion, considering the restrictive regulations, disclosing an employee’s COVID-19 results to track the spread of COVID-19 within the workplace should be possible by obtaining explicit consent from the individual. This will, in many cases, prevent employees from feeling victimised, which may allude to unfair discrimination and potentially the violation of the POPI Act and violating their fundamental right (A right to privacy).
Article by: Trevor Nene
Legal Assistant – Durban