Once an employee tests positive for Covid-19, the question naturally comes up of whether or not the employer can disclose the identity of infected employees to its workforce - or whether the employer is bound to upholding the employee's privacy regarding their health.
The Covid-19 pandemic is a novelty to everyone around the world and attempting to balance an employee’s right to privacy concerning his/her health with the duty to maintain a safe working environment, may very well be a difficult task to bear for employers. The declaration of Covid-19 as a national disaster has resulted in a number of our constitutional rights being limited, including the right to privacy, however, health related information may only be disclosed to a third party under restricted circumstances.
Once an employee reports to have tested positive for Covid-19, the directions issued by the Minister of Employment and Labour in terms of the regulations of the Disaster Management Act impose an obligation on the employer to report this fact to the Department of Health and to the Department of Employment and Labour. In such circumstances, the employee’s consent is not required for the employer to fulfil this obligation.
Information concerning an employee’s health is regarded as ‘personal information’ which is protected by the Protection of Personal Information Act, the commencement date of which has been postponed due to the outbreak of the virus. The disclosure of an employee’s personal information is strictly regulated and may only be shared when it is absolutely necessary and appropriate for the intended purpose. That is why it is advisable to obtain written consent of the relevant employee to release his/her identity to the workforce.
Should the employer be unable to obtain consent, the employer may provide information which will enable other employees to evaluate their risk of exposure without identifying the infected employee. The employer may determine the rate of infection in the workplace by directing the entire workforce or a section thereof that was in contact with the infected employee, to get tested for Covid-19. Regardless of medical testing being prohibited by the Employment Equity Act (EEA), unless legislation permits or requires the testing or it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job, the Covid-19 outbreak may justify such testing as a measure of maintaining a healthy and safe working environment.
Truth is, revealing the identity of an infected employee may result in unfair victimisation or discrimination and therefore such an employee must be informed that the required consent is voluntary, may be withdrawn at any time and further that disclosure of his/her identity will be limited to employees who have been in contact with the infected employee during the incubation period of 14 days.
This is why employers are advised to act cautiously in the handling and disclosure of health-related information of its workers, because as burdensome a duty to maintain a safe working environment may be, infected employees still require the employer’s protection of their right to privacy and not to be unfairly victimised and/or discriminated.