The United Kingdom (UK) approach

On 26 February 2021, The Department of Health and Social Care of the UK published a guideline titled, “Why you should test your workforce”. In this guideline, employers are urged to initiate COVID-19 testing of employees at their workplaces.

In the guideline, a workplace testing programme is said to be crucial to reducing transmission of the COVID-19 virus in the workplace, particularly considering that one in three people who are infected with COVID-19, are asymptomatic. This emphasises the importance of expanding COVID-19 testing to beyond just those employees who present with COVID-19 symptoms or those who, for other reasons, volunteer for testing.

In Annexure A of the UK guideline, it is recommended that employers provide at least two lateral tests per week. Employers are also advised to clearly communicate to their employees the purpose of the testing programme and the results of the tests.

South African legislative framework

Section 8 of the Occupational Health and Safety Act 85 of 1993 (OHSA), places a general duty on employers to, as far as reasonably possible, provide and maintain a working environment that is safe and does not pose a risk to the health of their employees. Section 8(2)(b) of the OHSA places a duty on employers to take all reasonable steps available to eliminate or mitigate any health hazards or potential health hazards to the safety of their employees before resorting to the use of personal protective equipment (PPE). Accordingly, the elimination of hazards before resorting to the use of PPE is a primary obligation placed on employers by the provisions of the OHSA.

This obligation must, of course, be weighed up against the general prohibition against the medical testing of employees in the workplace contained in section 7 of the Employment Equity Act 55 of 1998 (the EEA). However, section 7 recognises two exceptions to the general prohibition on medical testing:

• Where the medical testing is permitted by legislation; or
• Where the medical testing is justifiable in the light of medical facts, employment conditions, social policy, or the inherent requirements of a job.

Analysis

In our view, a workplace testing programme would be in line with the primary obligation(s) placed on employers by section 8 of the OHSA because the detection of COVID-19 through testing allows for infected employees to be isolated from the workplace, which then reduces the risk of infection to other employees. Furthermore, we consider that such medical testing programme would also be in line with the exception to the prohibition on medical testing in that such a programme would be justifiable in light of the medical facts presently known by the world about COVID-19.

Importantly, South African employers must carefully consider the protection of such medical information which they will be processing as it constitutes special personal information in terms of the Protection of Personal Information Act 4 of 2013 (POPIA). Section 26(a) of POPIA states that a responsible party, in this case the employer, may not process information concerning the health of any data subject, in this case an employee, without their informed consent. However, section 27 of POPIA states that such processing may be permitted with the data subject’s consent or if such processing is necessary to comply with a legal right or obligation imposed on the employer by law. It is advisable that consent is obtained from the employees in this regard.

Paragraph 5 of the Department of Health’s Guidelines titled “Guidelines for symptom monitoring and management of essential workers for COVID-19 related information (DOH Guidelines)” provides that when an employee or health professional supporting the employee receives a positive COVID-19 test, they must notify their workplace so that the employee is effectively managed. Paragraph 7 of the DOH Guideline further states that a positive COVID-19 test by an employee will require all potential contacts in the workplace to be assessed. The employer, therefore, has an obligation to investigate who has been in contact with any COVID-19 positive employee. Businesses can and should notify the relevant employees when there is a positive COVID-19 diagnosis in their business.

Workplace testing can ensure that businesses stay open for longer as a case study in the UK has shown. Apetito, a UK-based food producer was an early adopter of workplace testing and its early engagement with employees on workplace testing ensured higher participation in testing and ultimately revealed 66 employees who were infected with COVID-19 but did not show any symptoms. This would mean that without a workplace testing programme or a programme that only tests employees who are symptomatic, these 66 infected employees would likely have gone undetected for COVID-19 for longer and infected a significant number of their colleagues, as a result.

Recommendations to South African employers

It is well known that many businesses suffered great financial loss due to the effects of COVID-19. A workplace testing programme could go a long way in decreasing the risk of business operations being halted by COVID-19 infections because it decreases the chances of asymptomatic carriers of COVID-19 being in the workplace and infecting others.

Furthermore, a better knowledge of the actual number of COVID-19 infections in any particular workplace and where exactly in the workplace these infections occur could help employers improve their COVID-19 prevention procedures.

The psychological effect on employee morale and productivity that comes with working in what should ultimately be a safe workplace should also not be underestimated. Increased certainty in these uncertain times could increase employee morale and, in turn, productivity.

Conclusion

In conclusion, it is recommended that South African employers implement workplace testing as this method would go a long way in not only ensuring the health of employees but also the health of the business.