South Africa operates within a specific economic and organisational context and legislative imperatives which provides for guidelines on Employee Health and Wellness Programmes (EWP).  Government has also outlined in terms of its key strategic priorities, the creation of ‘decent’ work programmes, to which both the Public Service and the Private Sector seeks to contribute. The decent work programme is in line with the ILO Decent Work agenda which seeks to achieve sustainable development that is centred on people. The Decent Work Agenda addresses among others tackling HIV & AIDS and other health conditions in the world of work.

 The different players within the sphere of employee health and wellness legislation

There are different role players that can participate in efforts to ensure the health and wellness of employees in the workplace. The four major role players can include:

• The employee, by means of the actions he or she performs to keep him- or herself well (Cartwright & Cooper, 2002);
• Labour/trade unions (Cousins et al., 2004) through negotiating health and wellness issues of their members on such members’ behalf with their employers;
• Management of organisations by means of the implementation of employee health and wellness or assistance programmes;
• The national government, by means of the laws and national strategy it imposes. Legislation could play an important role in governing employee health and wellness, but that would only involve national government as a role player and might be bureaucratic.

An alternative might be to involve all the role players in the development of management standards to ensure the health and wellness of employees. However, the government can have a large influence by imposing legislation that promotes and protects employee health and wellness and by providing the infrastructure to support a management standards approach.

Source: www.sajhrm.co.za/index.php/sajhrm/article/download/144/172

Legislation through the EAPA-SA Code of Ethics

The purpose of the Employee Assistance Professionals Association of South Africa (EAPA-SA) Ethics Committee is to promote the highest ethical practice among Employee Assistance professionals and “its members” by:

• Creating a working document to be reviewed regularly and revised by the Ethics Committee, which establishes a code of conduct and a set of ethical standards.
• Providing training and education in the Codes of Ethics for the profession and EAPA-SA’s members.
• Establishing a process by which unethical behaviour and complaints from members of the organisation and the public can be reviewed and outcomes be objectively determined.

Legislation through employee wellness rights and responsibilities

The Employees

Employees have the right to expect that:

• The environment in which they work is healthy and safe
• The basic wellness services will be made accessible to them, conducted in an ethical manner
• Their working environment and working conditions will be conducive to wellness
• Their rights to confidentiality, autonomy, sensitivity, timeous intervention, equality, openness and transparency will be protected
• They will not be arbitrarily and unfairly discriminated against
• Their privacy is maintained and respected

Employees have the responsibility to:

• Conduct their work in a manner that advances sustainable, high-quality service delivery, and that protects their health and wellness
• Report and/or take action to correct conditions in the workplace that may be harmful to their own health and wellness and that of other employees
• Inform themselves of ways in which they can protect their health and wellness, both within and outside the workplace
• Take an initiative to seek professional intervention

The Employer

With respect to employee wellness, the employer has the responsibility to ensure that:

• A healthy and safe environment that is conducive for optimum productivity / service delivery is created and maintained in the workplace
• The basic wellness services are made accessible to employees, and are conducted in an ethical manner the working environment and working conditions of employees are conducive to wellness;
• Employees’ rights to confidentiality, autonomy, sensitivity, timeous intervention, equality, openness and transparency and confidentiality are protected;
• Employees are informed of conditions in the workplace that may be harmful to their health and wellness;
• Employees are not arbitrarily and unfairly discriminated against

The Right of Confidentiality

• Confidential information generally pertains to private personal information and may include an employee’s financial and marital circumstances, criminal record orhealth status, but not to the exclusion of other types of information. The constitution of the Republic guarantees every person’s right to privacy. Its application in the workplace, therefore, determines that an employer may not disclose an employee’s confidential information to the requesting party. Certain conditions however do permit release of information.
• This right, however, may be limited by legislation (e.g. section 16 of the Labour Relations Act, No 66 of 1995 and Promotion of Access to Information Act, 2000) and or court orders that warrant the disclosure of information. The collection and maintenance of confidential information should be kept securely and only those entitled to officially engage therewith may be allowed controlled access.
• An employee should be afforded an opportunity of verifying the accuracy, to rectify and to update confidential information, particularly in circumstances of employment equity.
• Breach of the Code of Confidentiality is a dismissible offence.

Source:  http://www.hrworks.co.za/policies?pid=61&sid=178:Employee-Wellness-Policy

Legal issues which require some attention

• There are no EAP-specific legislation in South Africa and most of the world. A long standing question on this matter: will EAP-specific legislation promote the EAP or will the contrary become true?
• The role of the Department of Public Service Administration (DPSA) in terms of the promotion of EAPs in the public sector. EAP practitioners in the public service are often unaware of those policies prescribed by the DPSA.
• The myth that no feedback should be provided to the referring supervisor. Reality is that EAP professionals are compelled to provide feedback to referring supervisors, in terms of:  confirmation of attendance/lack of attendance;   confirmation of cooperation/lack of cooperation;  and confirmation of progress/lack of progress.  None of these three matters imply any clinical information – which may not be shared unless with the necessary written permission of the individual employee.

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