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HIV/AIDS , THE RIGHTS OF ALL PARTIES IN THE WORKPLACE

Posted By: Hanlie Walker on 30 January 2012

The HIV/AIDS epidemic has become a national crisis, affecting all levels of society.  Increasingly affected is the business world - suffering not only from the human cost to the workforce, but also in terms of losses in profits and productivity, resulting in many challenges for both employers and employees.  As far as employees are concerned,  we only need to think about the shocking statistics on the number of child-headed households to acknowledge the destructive effect that this epidemic is having not only on individuals, but families nationwide, particularly where the breadwinner is affected.

In an attempt to address this reality and in line with global trends on this topic in the workplace, the Department of Labour has published a Code of Good Practice on key aspects of HIV and employment.  This Code gives employers guidelines to ensure that people who are HIV positive are not unfairly discriminated against in the workplace.  It also provides guidelines for employers and employees on how to manage HIV/AIDS in the workplace.  This Code of Good Practice is a much needed guideline as employees living with HIV/AIDS are often discriminated against by ignorant employers and fellow employees.

We set out below a brief summary of the rights of employers and employees in the workplace when dealing with HIV/AIDS. 

• Various pieces of legislation, including the Constitution of the Republic of South Africa, the Labour Relations Act and the Employment Equity Act give all employees the right to be treated fairly at work, including the right to fair labour practices and the right to equal treatment and non-discrimination. 

• The Labour Relations Act provides that it is an unfair labour practice to discriminate against an employee on any grounds, including disability.  Discrimination is automatically unfair if it infringes on any of the basic rights of employees, such as discrimination on grounds of a person’s disability.  Contrary to popular belief, HIV/AIDS is seen as and should be treated as a disability.

• The Employment Equity Act is even more specific about the rights of people living with HIV/AIDS.  It explicitly prohibits unfair discrimination against people at work on grounds of their HIV status.  It also prohibits testing for HIV in the workplace, unless this is pre-authorised by the Labour Court. 

• These rights afforded to employees who are HIV positive means that an employer can not:

• force a person who is applying for a job to have an HIV test;
• automatically make an HIV test part of a medical examination;
• compel someone who is already working for them to have an HIV test.

• Employers also have a responsibility in terms of the Occupational Health and Safety Act to provide, as far as reasonably practical, a safe workplace.  This includes ensuring that the risk of occupational exposure to HIV is minimised.  In this regard, the Department of Labour has issued regulations which provide that employees must keep rubber gloves in a first aid box and all staff must be trained so that they know what safety measures to take if a high risk accident (such as an open wound) occurs at work so as to prevent a possible HIV infection. 

• If an employee gets infected with HIV because of a workplace accident, s/he can claim compensation in terms of the Compensation for Occupational Injuries and Diseases Act.

• Unfortunately, people with HIV and eventually AIDS will start to become ill and this will affect their capacity to perform their work.  Employers are allowed to dismiss an employee on grounds of incapacity and poor work performance, even if the employee has not used all his or her sick leave.  This means that if an employee is unable to do his/her job properly because of his/her illness, then an employer will eventually be able to dismiss such a person.  There are, however, very clear guidelines for employers to follow when they want to dismiss an employee for incapacity, in particular where this is due to a disability such as HIV/AIDS.   

Employers and employees should familiarise themselves with the Code of Good Practice on key aspects of HIV and employment which gives guidelines on:

1. creating a non-discriminatory work environment;
2. HIV testing, confidentiality and disclosure;
3. providing equitable employee benefits;
4. dismissals;  and
5. managing grievance procedures.

For a copy of the Code of Good Practice, visit the website www.labour.gov.za and search under “legislation”.  It is however advisable for employers to have an HIV policy tailored specifically for their workplace to protect both employees and employers.  Contact our employment law experts to assist you in this regard.