The Reasonable Accommodation of Employees with Cancer and their Right to Privacy in the Workplace

  • Charles Maimela University of Pretoria
Keywords: Reasonable accommodation; cancer; employee; right to privacy; disability; employer; discrimination; substantive equality

Abstract

The duty of employers to reasonably accommodate employees living with disabilities is fundamental and is invoked on a daily basis in response to various health conditions which employees experience, such as cancer. While executing this fundamental duty, employers must be mindful of other rights which employees have, such as the right to privacy. Employers run the risk of violating the employees' right to privacy in the process of accommodating them if the employer discloses confidential medical information which must be used only for the purpose of making accommodations for the employee concerned, in this context an employee with cancer. This paper focuses on the duty of employers to reasonably accommodate such employees, and the right to privacy of the employees. Further, this paper aims to investigate if a balance can be maintained between the duty of the employer to make such accommodations and the right to privacy of the employees

References

Literature

Ashforth and Humphrey 1993 Acad Manag Rev
Ashforth BE and Humphrey RH "Emotional Labour in Service Roles: The Influence of Identity" 1993 Acad Manag Rev 88-115

BC Public Service Employee Relations Commission Manager's Guide
British Columbia Public Service Employee Relations Commission A Manager's Guide to Reasonable Accommodation (Public Service Employee Relations Commission Victoria, BC 2008)

Bernard 2014 PELJ
Bernard RB "Reasonable Accommodation in the Workplace: To Be or Not to Be?" 2014 PELJ 2869-2891

Burchell 1999 SALJ
Burchell JM "Media Freedom of Expression Scores as Strict Liability Receives the Red Card: National Media Ltd v Bogoshi" 1999 SALJ 1-11

Cancer Journey Advisory Group Research
Cancer Journey Advisory Group Research Related to the Workplace Support for Cancer Survivors: Perspective of Employers (Canadian Partnership Against Cancer Toronto 2012)

Collins and Miller 1994 Psychol Bull
Collins NL and Miller LC "Self-Disclosure and Liking: A Meta-Analytic Review" 1994 Psychol Bull 457-475

De Vos and Freedman South African Constitutional Law
De Vos P and Freedman W (eds) South African Constitutional Law in Context (Oxford University Press Cape Town 2014)

Devane Making the Shift
Devane C Making the Shift: Providing Specialist Work Support to People with Cancer (Macmillian Cancer Support London 2013)

Doyal and Hoffman 2009 CME
Doyal L and Hoffman M "The Growing Burden of Chronic Diseases among South African Women" 2009 CME 456-458

Ganz Cancer Survivorship
Ganz PA Cancer Survivorship: Today and Tomorrow (Springer New York 2007)

Herbst CANSA Guidelines
Herbst MC "CANSA Guidelines for Caregivers and Employers on how to Care for people living with Cancer" CANSA 2016

Kennedy 2007 Eur J Cancer Care
Kennedy F "Returning to Work Following Cancer: A Qualitative Explanatory Study into the Experience of Returning to Work Following Cancer" 2007 Eur J Cancer Care 17-25

Kok 2001 TSAR
Kok A "The Promotion of Equality and Prevention of Unfair Discrimination Act: Why the Controversy?" 2001 TSAR 294-310

Lindbohm et al 2004 EJC
Lindbohm ML et al "The Impact of Education and Occupation on the Employment Status of Cancer Survivors" 2004 EJC 2488-2493

Martinez Childhood Cancer Survivors' Workplace Experiences
Martinez RL Childhood Cancer Survivors' Workplace Experiences (Master of Arts thesis Rice University Texas 2010)

Marumoagae 2012 PELJ
Marumoagae MC "Disability Discrimination and the Right of Disabled Persons to Access the Labour Market" 2012 PELJ 345-365

Mehnert 2011 Crit Rev Oncol Hematol
Mehnert A "Employment and Work-Related Issues in Cancer Survivors" 2011 Crit Rev Oncol Hematol 109-130

Neethling, Potgieter and Visser Law of Personality
Neethling J, Potgieter JM and Visser PJ Neethling's Law of Personality (LexisNexis Butterworths Durban 2005)

Ngwena Disabled People and the Search for Equality
Ngwena CG Disabled People and the Search for Equality in in the Workplace: An Appraisal of Equality Models from a Comparative Perspective (LLD-thesis University of Free State 2010)

Roos 2008 PELJ
Roos A "Personal Data Protection in New Zealand: Lessons for South Africa" 2008 PELJ 62-109

Schoeman Philosophical Dimensions of Privacy
Schoeman F Philosophical Dimensions of Privacy: An Anthology (Cambridge University Press Cambridge 1984)

Shaw and Feuerstein 2004 J Occup Rehabil
Shaw WS and Feuerstein M "Generating Workplace Accommodations: Lessons Learned from the Integrated Case Management Study" 2004 J Occup Rehabil 207-216

Stergiou-Kita et al 2015 J Cancer Surviv
Stergiou-Kita M et al "The Provision of Reasonable Accommodations Following Cancer: Survivor, Provider, and Employee Perspective" 2015 J Cancer Surviv 489-504

Wegner and Lane Emotion, Disclosure and Health
Wegner DM and Lane JD Emotion, Disclosure and Health (Pennebaker Washington DC 1995)

Case law

South Africa

C v Minister of Correctional Services 1996 4 SA 292 (T)

Department of Correctional Services v POPCRU 2011 32 ILJ 2629 (LAC)

In Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd: In re Hyundai Motor Distributors (Pty) Ltd v Smit 2001 1 SA 545 (CC)

Jackson v NICRO 1976 3 SA 1 (A)

Kievits Kroon Country Estate (Pty) Ltd v Mmoledi 2012 11 BLLR 1099 (LAC)

MEC for Education, Kwazulu Natal v Pillay 2008 1 SA 474 (CC)

Minister of Finance v Van Heerden 2004 6 SA 121 (CC)

Mistry v Interim National Medical and Dental Council 1998 4 SA 1127 (CC)

National Media Ltd ao v Jooste 1996 3 SA 262 (A)

NM v Smith 2007 5 SA 250 (CC)

O'Keeffe v Argus Printing and Publishing Company Ltd 1954 3 SA 244 (C)

Tshabalala-Msimang v Makhanya 2008 1 All SA 509 (W)

Foreign case law

Kennedy and Arnold v Ireland [1987] IR 587

Ontario Public Services Employees Union v Ontario (Ontario Human Rights Commission) 2015 ONCA 495
Tolly v Fry and Sons Ltd [1931] AC 333; [1931] UKHL 1

Legislation

South Africa

Basic Conditions of Employment Act 75 of 1997

Constitution of the Republic of South Africa, 1996

Employment Equity Act 55 of 1998

Interim National Medical and Dental Council Act 101 of 1965

Labour Relations Act 66 of 1995

Medicines and Related Substance Control Act 101 of 1965

National Health Act 61 of 2003

National Prosecuting Authority Act 32 of 1998

Protection of Personal Information Act 4 of 2013

Social Assistance Act 13 of 2004

Foreign legislation

American Amended Discrimination Act, 2008

Equality Act, 2010

Internet sources

Cancer Council Australia date unknown http://www.cancer.org.au/content/pdf/AboutCancer/support/workingwithcancer_sect2.pdf
Cancer Council Australia date unknown Cancer Impacts in the Workplace http://www.cancer.org.au/content/pdf/AboutCancer/support/workingwithcancer_sect2.pdf accessed 31 March 2017

Fesko 1999 https://www.communityinclusion.org/article.php?article_id=77
Fesko SL 1999 Working It Out: Workplace Experiences of Individuals with HIV and Cancer https://www.communityinclusion.
org/article.php?article_id=77 accessed 31 March 2017

Van Hoey 2017 http://www.cancer.net/coping/relationships-and-cancer/cancer-and-workplace-discrimination
Van Hoey N 2017 When Cancer Leads to Workplace Discrimination http://www.cancer.net/coping/relationships-and-cancer/cancer-and-workplace-discrimination accessed 31 March 2017
Views
  • Abstract 0
  • pdf 0
  • xml 0
Views and downloads are with effect from 11 January 2018
Published
2018-08-30
Section
Articles