With South Africa currently under a declaration of a National Disaster, some questions remain regarding the constitutionality of mandatory testing and a person’s right to refuse.
There are some who hold the view that being obligated to be tested is a violation of his or her constitutional right. However, under the National Disaster proclamation, certain limitations on constitutional rights are viewed to be both fair and just.
The Department of Co-operative Governance and Traditional Affairs published 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. A warrant may be used to force compliance if a person refuses to be tested or quarantined.
In terms of workplace health, according to a document published by the Information Regulator of South Africa dated 03 April 2020, employers can force their workers to be tested for the SARS-CoV-2 virus behind Covid-19 illness.
In “GUIDANCE NOTE ON THE PROCESSING OF PERSONAL INFORMATION IN THE MANAGEMENT AND CONTAINMENT OF COVID-19 PANDEMIC IN TERMS OF THE PROTECTION OF PERSONAL INFORMATION ACT 4 OF 2013 (POPIA)” which focusses on the protection of personal information gathered for the purpose of containing the spread of COVID-19, a section deals with the question of consent and workplace obligation under Sections 6 and 7:
6.1 Can the employer request specific information on the health status of an employee in the context of COVID-19?
Yes, the employer is obliged to maintain a safe and hazardous free working environment in terms of the Occupation Health and Safety Act 85 of 1993 read together with the Employment Equity Act 55 of 1998, if an employee’s health status may endanger other employees. The disclosed information should not be used to unfairly discriminate against such an employee.
6.2. Can the employer force an employee to undergo testing for the COVID-19 virus?
Yes, the employer can force an employee to undergo testing in order to maintain a safe working environment.
7.1. Can a data subject refuse to give consent to be tested for COVID-19?
No, the Regulations require any data subject to undergo mandatory testing in order to manage the spread of COVID-19.
Furthermore, section 8 addresses the mutual responsibility of an employee to maintain a safe working environment by disclosing their COVID-19 positive status to their employer:
8.1. Does a person who has tested positive for COVID-19 have a duty to disclose his or her status?
Yes, a person who has tested positive has a duty to disclose his or status to enable the Government to take appropriate measures to combat the spread of COVID-19.
Thus, an employer may obligate an employee to be tested for COVID-19, and under the regulations of the National Disaster Act, the employee can legally be forced to comply.