WHEN IS MEDICAL TESTING PERMISSIBLE?

Section 7 of the Employment Equity Act prohibits medical testing unless it is justifiable in certain circumstances. These circumstances include, amongst others, the medical facts, employment conditions and the inherent requirements of the job. This raises the practical question as to whether the employer can require the employee to be tested by its own medical experts if the employee’s own medical experts have already carried out the indicated tests.
In the case of Solidarity obo Nel v National Metrology Institute of South Africa (SAFLII – 202744/2025) [2026] ZALCJHB 6 (5 January 2026) the employee was diagnosed with autism and major depressive disorder, and some accommodatory measures were implemented. One assessment warned that there was a possibility that Mr Nel would commit suicide. The employer refused to implement further accommodatory measures until Mr Nel underwent further medical testing for purposes of assessing the appropriateness of boarding him. The Labour Court ruled against such further testing because the employer had not provided an explanation as to why the tests already conducted were inadequate.
It is common practice for employers to assess seriously ill employees for boarding purposes, but the employer failed to state why the existing assessments had been inadequate. Had the employer motivated its need for further testing on the basis that it did not trust the existing medical assessments because the testers had been appointed by the employee and could therefore be biased, ought the Court to have approved further testing?