Covid-19: The obligation to be tested

THE OBLIGATION TO BE TESTED

Dear employer

There has been a lot of speculation as to whether an employee can be obligated by an employer to be tested when a Covid-19 infection is suspected.

There is a view that placing such an obligation on any person would violate his/her constitutional rights. This would be true under normal circumstances. However, due to the national disaster, it will be viewed as a fair and just limitation on certain constitutional rights.

The Department of Co-operative Governance and Traditional Affairs promulgated regulations determining that a person who is suspected to have Covid-19, or who has come into contact with someone who has Covid-19, may not refuse to be tested or quarantined.

Should any person refuse to be tested or quarantined, a warrant may be obtained to enforce such testing or quarantine.

Therefore, no person may refuse to be tested.

In addition to this, both the employer and employees have the responsibility, in terms of the Occupational Health and Safety Act, to provide a safe working environment. Therefore, an employer is well within his/her rights to demand that an employee must be tested for Covid-19, in order to comply with this obligation. There is in any event an obligation on an employee to disclose to the employer if he/she suspects that he/she has contracted the virus or if he/she suspects that a co-employee may have contracted the virus.

It is, therefore, clear that an employer can insist on testing and an employee does not, at this moment in time, have a right to refuse.

Regards

We are all in this together.
Privileged and challenged to be South African.