medical examinations

Earlier this week I came across an article in one of our local dailies about a messenger who was sacked because “he was on the verge of dying”. The employee was wrongly diagnosed as being HIV+ and this information was relayed to his employer leading to termination of his employment.

An employee, or potential employee, should not be discriminated against on the basis of health status. This protection is granted in Article 27 of the Constitution and Section 5 of the Employment Act.

The health status of an actual or potential employee should only be a consideration where the nature of the job demands a certain medical status e.g. pilots must undergo medicals every so often and those employed in Kenya and who are required to work outside Kenya (i.e. those on foreign contracts of service) must equally produce certificates of medical fitness. (The ‘inherent requirements of the job exception’ is captured in Section 5(4)(b) of the Employment Act).

Do employers have the right to receive an employee’s medical reports?

Article 31(c) of the Constitution gives every person the right to privacy, this includes the right not to have information relating to one’s private affairs unnecessarily required or revealed. Private affairs, in this case, include one’s medical examination reports.

Article 31(c) must be read together with Article 28 which captures the inherent dignity of every person as well as the right to have that dignity respected or protected.

It will be considered a breach if the privacy on the employee’s medical affairs is not upheld.

This issue has been dealt with in our courts; it’s been held that where an employee’s medical status is relevant to the job, a certificate of fitness issued by a doctor will suffice. The employer is not entitled to receive the full medical report; all he is entitled to receive is a certificate as to the employee’s fitness, or lack thereof, for the job.

In our starting case, even if the employee was HIV+, that diagnosis could not be said to be relevant or to in any way affect his work as a messenger.

See: –

  1. V M K v C U E A [2013] eKLR; 
  2. AMM v Spin Knit Limited [2013]eKLR.

All cases can be found at http://kenyalaw.org/caselaw/.

In the former case, the court held that “the employer must never force an employee to undergo a medical examination or force the employee to present medical reports that expose the employee’s health status that the employee is entitled to hold in his or her privacy.”

Therefore, unless your medical status has a direct impact on your job, it’s no one’s business.

 

About Anne Babu

Anne is an Advocate of the High Court of Kenya and the Founding Partner of Anne Babu & Co. She has practised employment law for over 12 years and her employment law practice has been recognized by the prestigious Chambers & Partners. Anne cares about employers and their labour issues.


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Comments

  1. Gloria Ochieng-Oxford says:

    Anne, thank you for your informative posts. Keep up the great work!

  2. Shali says:

    Do Househelp/ nanny jobs require a health fitness certificate?

    Thanks
    Shali

    1. Anne Babu says:

      Not that I am aware of.

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