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Thread: TB testing in the work place

  1. #1
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    TB testing in the work place

    I know HIV/AIDs testing is a touchy area for testing in the work place.We have done HIV/AIDs testing on a voluntary basis for our staff in the past.We have had a 2 staff booked last week for TB and I would not like to spread the TB to the rest of the factory.

    My question is :- Can I force staff to be tested for TB?

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    Site Caretaker Dave A's Avatar
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    I'd be interested in hearing the answer.

    One case I can report on at our workplace was where a staff member had developed a suspicious cough, and her fellow employees insisted she went for a TB test. It came through as a respectful request to management that we put the affected employee on leave until she had done the test and been confirmed as clear, but it was quite plain the issue would escalate if we didn't follow through. Fortunately the staff member concerned was entirely co-operative - and as it turned out did have T.B.
    The trouble with opportunity is it normally comes dressed up as work.

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    Platinum Member sterne.law@gmail.com's Avatar
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    It is depeendnat upon the facts.
    No medical test can be done without consent, lack of consent constitutes assault.
    The court's have on occassion refused to order DNA testing in paternity suits.
    The indiviudal has the right to bodily intergrity.
    An employer can not make a rule thtat is unconstitutional.

    The converse is that the employer is obligated to provide a safe working environment.
    However, this should be narrowly interpreted, a mere need to check for TB" is insufficient.
    There would need to be strong indications of illness and possible harm to employees and/or customers.

    I would also submit that TB and HIV are manageable and therefore the employer could insist on face masks and such. They could also impose hygiene standards with discipline for a failure to obey.
    Again the type of business will be relevant to the matter at hand.

    The possible 'solution' for lack of a better word, is, like many disciplinary issue, is the way it is managed.
    A ruling or insistence on testing may meet resistance.
    Where as the implementation of a non-obligatory employe health check/health maintenance program may yield better results. Of ccourse the employer will not be entitled to the results but the health care worker could play the role in getting medication and/or a leave of absence.

    Employees are often reluctant to get tested as they fear losing their job if they are booked for 6 months.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    Diamond Member AndyD's Avatar
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    Thanks Anthony. Would anything change if it was included in the employment contract that staff undergo regular testing for certain diseases at the cost of the conpany.
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    Platinum Member sterne.law@gmail.com's Avatar
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    There is provision for pre-employment testing - again one would need to be able to validate why it is neccessary.
    The second leg is that if a person returns an adverse result, may you refuse to employ them?
    This was decided in Hoffman v SAA. In short in pre testing he tested positive for HIV, SAA never employed him.
    Hoffman claimed discrmination and won. The court ruling that his health status was good enough to perform the work.
    In Gary Allpass case, a horse riding instructor was found to have HIV and dismissed. The dismissal was found to be unfair as there was no reason he could not perform the work.

    In a pre-test on TB, if the result is such taht they need to be away for teh long treatment then you could validate the non employment because you need to fill the position.
    If during employment they needed to go away you would not be able to dismiss, it would be an ill health case, unless teh person performed a role that was vital and it was impossible to employ some one on a temporary basis.

    As to the original question, yes, you could put it in the contract. However it would be similar to lie detector and breathalyser tests, where a refusal to submit is not an offence but an adverse implication will arise (in other words a contributing factor in a proceeding).
    It may sound strange that a refusal to honour a contractual clause is not, in itself punishable. The clause cannot be, YOU MUST submit, that would violate the constitutional right and is therefore not a valid clause. That is why the clause is normally worded along the lines that ou may be expected to test and if you refuse an adverse implication arises."
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    Silver Member bones's Avatar
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    Quote Originally Posted by sterne.law@gmail.com View Post
    It is depeendnat upon the facts.
    No medical test can be done without consent, lack of consent constitutes assault.
    The court's have on occassion refused to order DNA testing in paternity suits.
    The indiviudal has the right to bodily intergrity.
    An employer can not make a rule thtat is unconstitutional.

    The converse is that the employer is obligated to provide a safe working environment.
    However, this should be narrowly interpreted, a mere need to check for TB" is insufficient.
    There would need to be strong indications of illness and possible harm to employees and/or customers.

    I would also submit that TB and HIV are manageable and therefore the employer could insist on face masks and such. They could also impose hygiene standards with discipline for a failure to obey.
    Again the type of business will be relevant to the matter at hand.

    The possible 'solution' for lack of a better word, is, like many disciplinary issue, is the way it is managed.
    A ruling or insistence on testing may meet resistance.
    Where as the implementation of a non-obligatory employe health check/health maintenance program may yield better results. Of ccourse the employer will not be entitled to the results but the health care worker could play the role in getting medication and/or a leave of absence.

    Employees are often reluctant to get tested as they fear losing their job if they are booked for 6 months.
    what about red cards?
    when i wanted to install lid signs at a local
    mine property they insisted i must do it or
    they find someone else so my wife and i
    had to go we had to do the card and then
    only could we get access to the site

    we where physically examined and had to
    give urine samples x-ray and all kinds of
    test took up most of our day we never
    did work for them after that losing a day
    just to install a few lid exit signs is not
    worth it

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    Platinum Member sterne.law@gmail.com's Avatar
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    As per above the type of business is very relevant.
    An employee refusing to be searched could be dismissed as much as he has the right not to be searched.

    More importantly in your situation, you were not an employee but a contractor. The choice to-do business lies with you.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    Site Caretaker Dave A's Avatar
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    Quote Originally Posted by sterne.law@gmail.com View Post
    The second leg is that if a person returns an adverse result, may you refuse to employ them?
    This was decided in Hoffman v SAA. In short in pre testing he tested positive for HIV, SAA never employed him.
    Hoffman claimed discrmination and won. The court ruling that his health status was good enough to perform the work.
    I can't help wonder if the finding would have been the same had the positive result been for T.B. rather than HIV. There's a material difference in the infectious profile between the two that I would suggest is relevant.
    The trouble with opportunity is it normally comes dressed up as work.

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    Platinum Member sterne.law@gmail.com's Avatar
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    Indeed, which returns to the case by case analysis.
    It would probably still be subject to attack as discriminatory against TB sufferers.
    If a job had been offerred and then the testing done then the person is already employed.
    The other issue would be that TB can be treated, with time periods differing.
    So the employer would have to show that the position needs to be filled immediately.
    I would think the case will be slightly tilted towards the employer in comparision to HIV cases.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

  12. Thanks given for this post:

    roryf (13-Apr-15)

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