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Employment Equity Act, 1998 (Act No. 55 of 1998)

Code of Good Practice

Employment of Persons with Disabilities

14. Confidentiality and disclosure of disability

 

14.1 Confidentiality

 

14.1.1 Subject to sections 711 and 18 of the Act12, employers, including health and medical services personnel, may only gather private information relating to employees if it is necessary to achieve a legitimate purpose, with the written consent of the person.

 

14.1.2 Employers must protect the confidentiality of the information that has been disclosed and must take care to keep records of private information relating to the disability of applicants and employees confidential and must be kept separate from general personnel records.

 

14.1.3 When an employer no longer requires this information, it must be destroyed.

 

14.1.4 Subject to paragraph 14.2.7, employers may not disclose any information relating to a person's disability without the written consent of the employee concerned unless legally required.

 

14.2 Disclosure

 

14.2.1 Persons with disabilities are entitled to keep their disability status confidential. But if the employer is not aware of the disability or the need to be accommodated, the employer is not obliged to provide it.

 

 

This does not absolve an employer from their responsibility not to discriminate unfairly, directly or indirectly against job applicants.

 

14.2.2 A person with a disability may disclose their disability at any time, even if there is no immediate need for reasonable accommodation.

 

14.2.3 lf the disability is not self-evident the employer may require the employee to disclose sufficient information to confirm the disability or the accommodation needs.

 

14.2.4 If on reasonable grounds the employer does not believe that the employee is disabled, or that the employee requires accommodation, the employer is entitled to request the employee to be tested to determine the employee's ability or disability, at the expense of the employer.

 

14.2.5 As information about disability may be technical, employers should ensure that a competent person interprets the information.

 

14.2.6 If an employer requires further information this must be relevant to a specific job and its essential functions.

 

14.2.7 An employer may not reveal the fact of an employee's disability, unless this is required for the health or safety of the person with the disability or other persons.

 

14.2.8 The employer may, after consulting the person with the disability, advise relevant staff that the employee requires accommodation.

 

 

11 Section 7(1) 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. 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 or Section 50(4) of this Act."

 

12 Section 18(1) of the Act provides that "when a designated employer engages in consultation in terms of this Chapter that employer must disclose to the consulting parties all relevant information that will allow all those parties to consult effectively, and 18(2) Unless this Act provides otherwise, the provisions of section 16 of the Labour Relations Act, with the changes required by context, apply to disclosure of information."