Chapter 9 - HIV and AIDS AND THE LAW
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 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.
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.
An employer cannot :
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.
There are new regulations issued by the Department of Labour which say:
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.
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:
General rules about HIV and Aids that apply 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:
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.
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.
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.