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Chapter 9 - HIV and AIDS AND THE LAW

HIV/AIDS in the workplace

Laws that give employees with HIV and/or Aids rights at work

Employees living with HIV/AIDS are often discriminated against by their employers, supervisors or colleagues (other employees). The following laws give people rights at work:

The Constitution

The Constitution gives 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 (LRA)

The LRA gives employees the right to be treated equally. It is an unfair labour practice to discriminate against an employee on any grounds, including, race, gender, sex, colour, sexual orientation, age, disability and so on. Discrimination is 'automatically unfair' if it breaks any of the basic rights of employees such as discrimination on grounds of a person’s disability.

See Automatically unfair dismissals.

CASE STUDY

Hoffman v South African Airways (2000)

Mr Hoffman applied for a job as a cabin attendant with South African Airways (SAA) and was asked by SAA to go for an HIV test. The test showed that he was HIV positive. SAA refused to give Mr Hoffman the job because, they said, part of his job involved travelling to different countries and he would need to have a yellow fever vaccination. It is not advisable for someone with HIV to have these vaccinations. SAA said that this was an inherent requirement of the job (essential for the job) in the airline and therefore they couldn't employ him.
The case was referred to the Constitutional Court. The court was asked to decide if SAA had gone against Hoffman's rights to equality, dignity and fair labour practices.
The court decided:

  • that SAA had discriminated against Hoffman
  • the discrimination was unfair and infringed his dignity
being HIV negative was not an inherent requirement of the job of being a cabin attendant; they should have taken greater steps to investigate how Hoffman's immune system could have dealt with traveling and the possibility of getting a strange disease.

The Employment Equity Act (EEA)

The EEA is more specific about the rights of people living with HIV or AIDS. The EEA explicitly prohibits unfair discrimination against people at work on grounds of their HIV status. The EEA also prohibits testing for HIV in the workplace unless this is authorised by the Labour Court.

See Employment Equity Act.

An employer cannot :

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

The EEA doesn't cover members of the South African National Defence Force, the Secret Service or the National Intelligence Agency. But members of these organisations can still take their cases to the Constitutional Court

The Occupational Health and Safety Act and Mine Health and Safety Act

Sometimes an accident at work can cause a bleeding injury. If the injured person is HIV-positive and someone who tries to help the person also has an open wound, there is a small chance of the helper becoming infected if the wound comes into contact with the injured person's blood. The employer has a responsibility to make sure that the workplace is safe and that employees are not at risk of HIV infection at work.

See Occupational Health and Safety Act.

There are new regulations issued by the Department of Labour which say:

  • employers must keep rubber gloves in the first aid box
  • all staff must be trained so that they know what safety measures to take if an accident happens

Compensation for Occupational Injuries and Diseases Act (No 130 of 1993) (COIDA)

COIDA gives employees the right to compensation if they are injured or become ill at work. If you get infected with HIV because of a workplace accident, you can claim for compensation.

See Compensation Fund.

The Medical Schemes Act No 131 of 1998 and Regulations: Government Gazette 20556, 20 October 1999

Medical aid as a form of insurance is an important employee benefit in the workplace. In the past, the majority of medical schemes refused to cover illnesses that were linked to HIV infection.

The Medical Schemes Amendment Act of 1998 prohibits discrimination on the grounds of 'state of health'. This covers a person living with HIV or AIDS. It means that the medical scheme cannot refuse to cover reasonable care that could prolong the health and lives of people living with HIV or AIDS

The Medical Schemes Act stops medical schemes from discriminating against people living with HIV or AIDs. It states that all schemes must offer a minimum level of benefits, decided by the government, to employees with HIV or AIDS. The minimum levels of benefits include:

  • treating all opportunistic infections for HIV or AIDS
  • hospital admissions with treatment
  • they do not have to provide anti-retroviral drugs

General rules about HIV and Aids that apply in the workplace

  • A person who is HIV positive does not have a duty to give this information to his or her employer because of their right to privacy.
  • If you tell your employer about your HIV status, the employer cannot tell anyone else without your consent. If the employer tells anyone else, this is breaking your privacy and right to confidentiality, and it is possibly an unfair labour practice.
  • A doctor or health care worker who tells an employer about an employee's HIV status without their consent is acting against the law. This is breaking the employee's right to confidentiality.
  • An employer cannot demand to know if the cause of an illness is HIV infection.
  • An employer cannot refuse to employ you because you have HIV.
  • An employer cannot dismiss you because you have HIV.
  • An employer cannot dismiss you because you have HIV, even if other employees refuse to work with you.
  • The Promotion of Equality and Prevention of Unfair Discrimination Act also protects an HIV-positive person from unfair discrimination in the workplace.

Code of Good Practice on HIV and AIDS and employment

The Department of Labour has published a Code of Good Practice on Key aspects of HIV and Employment. This Code gives employers and trade unions guidelines to ensure that people who are HIV-positive are not unfairly discriminated against in the workplace. This includes provisions dealing with:

  • creating a non-discriminatory work environment
  • HIV testing, confidentiality and disclosure
  • providing equitable employee benefits
  • dismissals
  • managing grievance procedures

The Code also provides guidelines for employers, employees and trade unions on how to manage HIV/AIDS in the workplace.

For a copy of the Code, see the website: www.labour.gov.za and search under ‘Legislation’.

What happens if you become too ill to work?

All employees have a right to sick leave and an employer has no right to discriminate against or dismiss an employee who uses these rights. The Basic Conditions of Employment Act says an employee can have 6 weeks paid sick leave over any 3-year cycle. However, people with HIV will eventually start to become ill and this will affect their capacity to perform their work. An employer is allowed to dismiss an employee on grounds of incapacity and poor work performance, even if the employee has not used all their sick leave. This means, if an employee is unable to do their job properly because of their illness then the employer will eventually be able to dismiss them.
There are very clear guidelines for employers to follow when they want to dismiss an employee for incapacity. For example, the employer must see whether the incapacity is going to be permanent and must also investigate alternative employment. for the employee.

See Dismissal for incapacity.

What can you do to protect your rights at work?

Employees can take disputes about dismissals or discrimination to a Bargaining Council or the Commission for Conciliation, Mediation and Arbitration (CCMA). The Bargaining Council or CCMA will try to settle the dispute by conciliation, mediation or arbitration.

See Solving disputes under the Labour Relations Act.

Cases about unfair discrimination and automatically unfair dismissal will be referred to the Labour Court. Employees can appeal against decisions of the Labour Court by going to the Labour Appeal Court.

See Case study: ‘A’ vs South African Airways.

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