Must employees disclose their vaccination status?
While employers cannot force their employees to be vaccinated, there are various grounds for dismissing employees who object, provided that the employer has conducted a thorough risk assessment to determine the need for vaccination. They also need to provide every possible reasonable solution to accommodate them. One of the grounds on which an employer can let go of an employee who refuses the jab is the refusal of sharing medical information if they wish to be exempt from their workplace’s vaccine programme for medical reasons. If an employee objects on medical grounds, they may be sent for medical testing to prove the veracity of their claims. Employers must, however, ensure that they are obtaining the consent of their employees before they send them for medical testing and that all the provisions of the Employment Equity Act are closely complied with in relation to discrimination. However, an employer can make the disclosure of medical information mandatory for a public policy reason. Employers can argue that mandatory vaccination and vaccination-related information are critical to the organisation and necessary for the company to continue its operations. An option would be for the inclusion of an employment policy or a workplace vaccination policy which states that vaccination and Covid statuses must be disclosed. If the employer can show that the non-disclosure of it prevents the company from operating, or that it endangers others, it can go as far as dismissing the employee. In terms of the guidelines and directives of the Health Professions Council of South Africa, registered health practitioners can be approached for a patient’s medical details. Any personal information can, however, only be shared in alignment with the council’s ethical rules and regulations. Confidential information can only be shared with the express consent of the relevant parties. Any of the personal information can be shared if all parties expressly grant such permission. However, in some instances, the law can require that medical professionals provide and/or divulge certain medical information without the consent of a patient, by way of a court order if required by law, and/or if the disclosure is in the public interest. Although civil actions for breach of confidence are rare, the issue can be a minefield for the unwary. Thus, those who are about to reveal and/or compel the disclosure of confidential information should carefully consider their grounds for doing so and be clear that there is either consent, lawful authority, or some public interest justification. Reference List: https://www.adams.africa/litigation/disclosure-of-medical-information/ www.businessinsider.co.za/protection-of-personal-information-act-and-covid-19-workplace-vaccinations-in-south-africa This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
Don’t cause unnecessary difficulty with your disciplinary action
Many employers often decide to leave disciplinary matters for a later date and/or overlook matters of concern to avoid conflict. However, when handled well, conflict can have a positive impact on an employee’s performance and behaviour after they have made an error. Did this ever happen to you as a teenager? You’re sitting in the backseat of the car after being picked up from school and one of your parents says something you disapprove of, and before you know it you’ve given them lip and voiced your unwanted opinion. The next words you hear are the most dreadful words any teen can hear – “Just wait until your mom/dad gets home”. Those few words are enough to strike fear into the most entitled of young’uns, and it makes the rest of the day unbearable. While your parenting style is very much a matter of opinion (barring obvious wrongs), the same style of discipline in the workplace leaves much to be desired and can, in fact, lead to unwanted conflict and legal repercussions down the line. Delays in the process have the following results: Employees are anxious When you delay discipline and the relevant employee is aware of their error, it often leads to anxiety and unproductivity. This happens because the employee can become so fixated on the problem to be discussed and be mentally consumed by constructing a defence. Evidence is lost When you delay discipline, you allow the evidence for the error on the part of the employee to get away. Reconstructing the facts at a much later point often leads to misrepresented, exaggerated, or understated claims. Taking decisive disciplinary action and detailing events and relevant documents is easier when it is done sooner. It devalues legitimate issues When you don’t take decisive disciplinary action soon enough, it makes it appear as though the error of the employee is less serious than it may be. It also sets an undesirable precedent and could lead to resentment for the employee who has made the error from their peers. It often comes across as (and can be construed as) unfair When discipline is delayed (especially with the addition of the factors mentioned above), the eventual discipline can feel like a personal, discriminatory action. It raises the legitimate question of why action wasn’t taken sooner. Quick, decisive action, on the other hand, has the following results: Course correction When discipline is taken quickly and decisively, it leaves the employee in a position to correct their action going forward and encourages unity in the workplace. Good disciplinary procedures will set out a clear description of what went wrong with a clear action plan to improve the employee’s behaviour or performance going forward. Fair hearings with relevant evidence When action is taken without delay, it allows everyone to gather the most relevant available information. Everyone can share their experiences and present their best case before a plan of action is made. The employee is also given a fair opportunity to appeal the decision made with the case they present. Better case for escalation if the issue persists Often, bad behaviour or poor performance persists if action isn’t taken timeously. It then makes it much more difficult to escalate your approach if no formal disciplinary action for the first instance of misconduct has taken place. Not only is decisive action good for correcting the behaviour, but it also ensures that there are no delays to escalation if the situation does not improve. More respect for management Good managers lead well. If you set a clear example every time of how discipline is approached in the workplace, you only stand to earn respect. Too many managers are seen as weak managers for their inability to take action when conflict arises. Don’t let poor behaviour or performance slip and cause you unnecessary problems down the road. Get in touch with your Labour Law adviser to ensure that the policies and procedures that you have in place are both secure and relevant and make your workplace an environment that is conducive to fast and effective conflict resolution. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
Medical and psychological testing: Is passing a requirement?
As a point of departure: according to section 7 and 8 of the Employment Equity Act, 55 of 1998 (“the Act”), employers are prohibited from performing medical- and psychological testing, or any other similar assessments, on employees. Employees, though, are often required to pass medical or psychological testing before they are considered for a certain vacancy. Such tests will only be lawful when legislation requires or permits the testing or when the employer can justify the reason for the testing. According to section 7 of the Act, the employer may justify the prerequisite of a medical test in light of medical tests, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of the specific job. While psychological testing or any other similar assessment may only occur when the results thereof have been scientifically shown to be valid and reliable, when such testing can be fairly applied to all employees, and lastly, that such tests will not bias any employee or group. Furthermore, section 9 of the Act states that “employee” includes an applicant. Therefore, the aforesaid provisions are applicable to both employees that are currently employed by an employer and the applicants who are currently seeking employment. So, what happens when the employer does not make it clear why the medical, psychological or any other similar assessment is required? In the case of EWN v Pharmaco Distribution (Pty) Ltd (2016) 377 ILJ 449 (LC), the Labour Court was given the task of deciding whether a clause, in the employment contract of an employee suffering from bipolar disorder, which gives the employer the discretion of having the employee undergo medical testing whenever the employer deemed it necessary, was lawful. A clause in the employee’s contract provided: ‘The employee will, whenever the company deems necessary, undergo a specialist medical examination at the expense of the company, by a medical practitioner nominated and appointed by the company. The employee gives his/her irrevocable consent to any such medical practitioner making the results and record of any medical examination available to the company and to discuss same with such medical practitioner. The above shall include and apply to psychological evaluations.’ The employee, however, refused to undergo the said testing and one of the main issues which the Labour Court had to decide on was whether the provision was enforceable; and whether her dismissal for failing to submit to a medical examination was automatically unfair in terms of s187(1)(f) of the Labour Relations Act (LRA) 66 of 1995. The court held that the section provides no exception based on the consent of the employee in an employment contract and that medical testing will only be permitted in the circumstances set out in section 7 or 8 of the Act, which did not find application in this case. The court also found that the instruction to undergo psychiatric testing on account of the employee’s bipolar condition amounted to unfair discrimination in terms of section 6 of the Act. The dismissal of the employee for refusing to undergo a psychiatric evaluation to determine her fitness to work was found to be an automatically unfair dismissal in terms of s187(1)(f) of the Labour Relations Act, 66 of 1995. Employers are, however, still able to use arguments such as “employment conditions” or “inherent requirements of a job”, to “cover up” certain tests. This will result in applicants being rejected or the results of such tests being used as grounds for dismissal. To make sure whether such conditions or requirements will justify the rejection or dismissal, it is important to look at the nature of the specific job in question, the general practice and the history of the employer’s employment conditions and inherent requirements of the job to evaluate whether the decision was fair. Employers are only allowed in limited circumstances to require that employees undergo medical- and psychological testing or any other similar assessments. Should there be a clause in the employment agreement which provides for such testing, which was signed by the employee, it does not necessarily mean that such testing will be lawful. It is important to note whether such a clause is in line with the Act. Reference List: Employment Equity Act, 55 of 1998. EWN v Pharmaco Distribution (Pty) Ltd (2016) 377 ILJ 449 (LC). Labour Relations Act, 66 of 1995. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)