Protection of Personal information Act having been promulgated in November 2013, various questions have been raised by employers regarding their rights to question or obtain information from employees. One of the questions regularly dealt with, is whether the employer is entitled to question employees about medical conditions listed on medical certificates when they have been booked off work. The question may arise where, for example, an employer is concerned that a medical condition may be hazardous to other employees if they are exposed to the affected employee.
Protection of Personal Information Act and medical certificates
So, does the Protection of Personal information Act prevent the employer from acquiring this information?
The question at hand is in fact not one related to Protection of Personal information Act at all, as POPI is focused more on how information is dealt with once it is obtained, rather than what information may be asked of an employee.
The main contention here is one arising from section 23 of the Basic Conditions of Employment Act. The section provides as follows:
23. Proof of Incapacity
(1) An employer is not required to pay an employee in terms of section 22 if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request of the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.
(2) The medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament.
This section in no manner imposes an obligation on the employee to disclose the exact nature of their illness; the only requirement is that a qualified medical practitioner confirm that they were unable to render service on the day in question due to injury or illness, whatever the condition may be. To impose a more stringent obligation on the employee is less favourable to the employee than the provisions of the Act, and can therefore not be enforceable.
Such an obligation may further infringe on the employee’s constitutional right to privacy as well as medical privilege. The principle is that an employee need not disclose medical facts to the employer unless it will directly impact on its operations.
This view point is further supported by section 7 of the Employment Equity Act dealing with medical testing.
The provision stipulates that:
1. Medical testing of an employee is prohibited, unless-
(a) Legislation permits or requires testing; or
(b) 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.
Where an employer so wishes to have an employee tested, they would bear the onus of proving one of the above mentioned grounds to justify why the tests are required.
This does not mean that a medical certificate with a vague reference to an unidentified medical condition is beyond question. The employer is entitled to investigate the legitimacy of the medical certificate by contacting the relevant physician, who can then be asked to confirm the employee’s incapacity for the relevant days. Where there is doubt a second opinion may be requested.
Finally, the employer would be unable to support the argument that they need to know what the medical condition of the employee is to ascertain whether it would affect other employees.
The fact that a doctor only incapacitates the employee for a certain period of time asserts that the employee is no danger to public thereafter.
Where it would be unsafe for the employee to resume work, the medical practitioner would not sign them off as fit for duty. Where the employee suffers from a dangerous, communicable disease, the medical practitioner would further be obliged to inform all parties that the employee might have come in contact with during the infectious period to prevent further spreading of the disease and to afford treatment to affected individuals. Companies are therefore safeguarded against situations where ill employees may cause epidemics.