| 8.1.1 |
Tests must comply with sections 7 and 8 of the Act.9 They must be relevant and appropriate to the kind of work for which the applicant or employee is being tested. |
| 8.1.2 |
Employers should establish that tests do not unfairly exclude and are not biased in how or when they are applied, assessed or interpreted. |
| 8.1.3 |
Tests to establish the health of an applicant or employee should be distinguished from tests that assess the ability to perform essential job functions or duties. |
| 8.1.4 |
Testing to determine the health status of an employee should therefore only be carried out after an employer has established that the person is in fact competent to perform the essential job functions or duties and after a job offer has been made. The same applies to medical testing for admission to membership of an employee benefit scheme. |
| 8.1.5 |
An employer who requires a person to undergo any medical, psychological testing and other similar assessments must bear the costs of the test. |
| 8.2 |
Testing after Illness or Injury |
| 8.2.1 |
If an employee has been ill or injured10 and it appears that the employee is not able to perform the job, the employer may require the employee to agree to a functional determination of disability. |
| 8.2.2 |
Such medical or other appropriate tests shall be used to— |
| (a) |
determine if the employee can safely perform the job; or |
| (b) |
to identify reasonable accommodation required for the employee. |
| 8.3 |
Health Screening and Safety |
| 8.3.1 |
Employers are required to provide and maintain a safe and healthy working environment. |
| 8.3.2 |
An employer should not employ a person if the employer can demonstrate that a person with a disability would represent an actual substantial risk to him or her or other people, which could not be eliminated or reduced by applicable reasonable accommodation. |
| 8.3.3 |
An employer is not obliged to retain an employee with a disability in the same position if an objective assessment shows that work would expose the employee or others to an actual substantive health and safety risk. This would only apply where there is no reasonable accommodation possible to mitigate the risk. |
| 9 |
Section 7 of the Act provides that medical testing of an employee is prohibited, unless— |
| (a) |
legislation permits or requires the 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. |
Section 7(2) Testing of an employee to determine that employee's HIV status is prohibited unless such testing is determined to be justifiable by the Labour Court in terms of section 50(4) of this Act.
Psychological testing and other similar assessments of an employee are prohibited unless the test or assessment being used—
| (a) |
had been scientifically shown to be valid and reliable |
| (b) |
can be applied fairly to all employees; |
| (c) |
is not biased against any employee or group; and |
| (d) |
has been certified by the Health Professions Council of South Africa established by section 2 of the Health Professions Act, 1974 (Act No. 56 of 1974), or any other body which may be authorized by law to certify those tests or assessments. |
| 10 |
See also sections 10 and 11 of the 'Code of Good Practice Dismissal' published under section 203 of the Labour Relations Act 66 of 1995 for provisions relating to "Incapacity: Ill health and injury" and dismissal. |
Implementation of Geneva Conventions Act, 2012
