Section 131 of the Employment Act (Chapter 373) sits in Part IX and governs the medical examination attached to an attested contract. Compliance with it is one of the six matters a labour officer must be satisfied of under section 23 before attesting.
Section 131(1) — the three certifications
(a) is medically fit; and
(b) is physically able to perform the class of work for which he is employed; and
(c) is, in the opinion of the medical practitioner or medical assistant, of employable age.
Paragraph (b) is job-specific: the question is not general health but ability to do this class of work. Paragraph (c) supplies a medical check on age alongside the legal rules — section 18 sets 16 as the minimum age for a written contract, and Part VI Division 2 governs the employment of young persons.
Who may certify is set by section 8: medical officers are registered medical practitioners appointed by the Secretary with the approval of the Secretary for Health; medical assistants are medical aids, medical assistants and health extension officers of the Public Service.
Section 131(2) and (3) — where no one is available to examine
Where a medical practitioner or medical assistant is not available to conduct the examination, a labour officer:
(a) may, if satisfied as to the apparent medical fitness, physical ability and age of the employee, approve the contract; and
(b) shall, if he approves it, endorse the contract noting the absence of a medical certificate.
Where a contract is endorsed under section 131(2)(b), the employer shall ensure that the employee is medically examined in accordance with subsection (1) as soon as practicable after the commencement of employment.
The endorsement is a deferral, not a waiver. An employer relying on it should diary the examination, and a worker should ask when it will happen.
This is a sensible provision for remote engagements, and it explains why some attested contracts carry an endorsement rather than a certificate. Ask to see which.
Section 131(4) — where the employee is found unfit
(a) medically unfit; or (b) not of the required physical standard; or (c) under the minimum employable age,
the employer shall comply with any directions of a medical practitioner, medical assistant or health extension officer as to:
(d) the variation or termination of the contract; or
(e) the treatment or hospitalisation of the employee.
Two points follow. First, the direction may be to vary the contract rather than end it — moving the employee to work they are able to do. Second, the direction may be to treat or hospitalise the employee, and the employer must comply. That sits alongside section 130(7), under which the employer must comply with all reasonable directions affecting the health, treatment or hospitalisation of an employee.
An employee whose contract ends because illness or accident prevents compliance is entitled to repatriation under section 40(1)(d)(iv), on production of a certificate of a medical practitioner or other acceptable medical certificate. Where acceptability is disputed, the decision of a labour officer is final.
And where a labour officer refuses to attest a contract at all, section 24(3) returns the employee to the place of engagement as if section 40 applied.
Section 131(5) — the employer pays
The cost of any medical examination required under this section shall be borne by the employer.
Unqualified. And it is not among the permitted deductions in section 88(1), so it cannot be recovered from wages. A charge for a pre-employment medical, or a deduction for it, is unlawful — and if imposed as a penalty is an offence under section 94.
Other medical provisions in the Act
| Section | Provision |
|---|---|
| 127 | Offence to knowingly require an employee to perform work for which he is not physically fit — fine up to K500.00 |
| 65(1)(c), (3) | Sick leave on a certificate of a medical practitioner or other acceptable medical certificate; a labour officer’s decision on acceptability is final |
| 100(2)–(3), 102 | Certificates of medical fitness in connection with pregnancy, maternity leave and resumption of duty |
| 104 | Young persons and injurious conditions; a medical practitioner’s certificate is conclusive evidence |
| 128–130 | Medical supervision, sick wards and hospitals, and free treatment |
| 142 | Authorised officers may check the supply of medicines, inspect sanitary arrangements and take water samples |
| 143 | Secrecy — an authorised officer who discloses matters relating to a person’s business learned in the course of duty commits an offence |
A note on medical information
The Act requires certification of fitness, physical ability for the class of work and employable age — not disclosure of a diagnosis. The certificate answers those three questions.
Section 143 makes it an offence for an authorised officer to disclose matters relating to a person’s business learned in the course of duty. More generally, section 49 of the Constitution gives every person the right to reasonable privacy in respect of his private and family life, and section 41 renders unlawful an act that is harsh or oppressive even if authorised by law.
Checklist
- Attested contract? Section 131 applies before attestation.
- Ask whether the contract carries a certificate or a section 131(2)(b) endorsement.
- If endorsed, ask when the examination will be arranged — it must be as soon as practicable after employment starts.
- Check who certified — a medical officer or medical assistant appointed under section 8.
- Never pay for it, and check no deduction appears on the pay statement.
- If found unfit, ask what direction was given — variation of the contract, treatment, or termination.
- If the contract ends on medical grounds, claim repatriation under section 40(1)(d)(iv).
Sources
- Employment Act (Chapter 373) — ss 8, 18, 23, 24, 40, 65, 88, 94, 100–104, 127–131, 142, 143
- Medical Registration Act — PacLII 1986 Revised Edition
- Constitution — ss 41, 49
Before relying on anything here, read the current text of the Employment Act (Chapter 373) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.