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Employment Equity Act, 1998 (Act No. 55 of 1998)

Code of Good Practice

HIV and Aids and the World of Work

7. Elimination of Unfair Discrimination and Promotion of Equal Opportunity and Treatment


Policies and programmes must respect national guidelines on Counseling, HIV Testing, Confidentiality and Disclosure.


7.1 Counseling and Informed Consent


7.1.1 HIV testing of workers must be provided with informed consent and proper counseling. Where employers or workers facilitate provision of HIV testing facilities, they must ensure a conducive environment for counseling.


7.1.2 Pre-Test counseling should take place prior to a worker being tested to determine his or her HIV status.


7.1.3 Post-Test counseling should take place to determine whether a worker has tested negative or positive. Proper procedures should be followed in advising the worker on the next steps, depending on the HIV test results.


7.1.4 No employer may require a worker or an applicant for employment to undertake an HIV test in order to ascertain that worker's HIV status. Testing must be with consent and voluntary.


7.2 HIV Testing


7.2.1 Authorisation for mandatory HIV testing of workers may only be obtained from the Labour Court in terms of Section 7(2) of the Employment Equity Act.


7.2.2 Mandatory Testing for HIV is not a requirement in the world of work, including the following circumstances:
(a) during an application for employment;
(b) as a condition of employment;
(c) during procedures related to termination of employment; and
(d) as an eligibility requirement for training or staff development programmes.


7.2.3 Anonymous, unlinked surveillance or epidemiological HIV testing in the workplace may occur provided it is undertaken in accordance with ethical and legal principles. The information obtained must not be used to unfairly discriminate against workers. Testing will not be considered anonymous if there is a reasonable possibility that a worker's HIV status can be deduced from the results.


7.3 Confidentiality and Disclosure


7.3.1 All persons, including those with HIV and AIDS have the legal right to privacy. A worker is therefore not legally required to disclose his or her HIV status or related medical information to his or her employer or to other workers.


7.3.2 The results of HIV testing must be confidential and not endanger access to jobs, tenure, job security or opportunities for advancement.


7.3.3 Where a worker chooses to voluntarily disclose his or her HIV status to the employer or to other workers, this information must not be disclosed to others without the worker's express written consent. Where written consent is not possible, steps must be taken to confirm that the worker wishes to disclose his or her HIV status.


7.3.4 Mechanisms must be created to encourage openness, acceptance and support for those employers and workers who wish to voluntarily disclose their HIV status within the workplace.


7.3.5 Access to personal data relating to a worker's HIV status and related medical data must be bound by the rules of confidentiality consistent with the relevant national laws.


7.4 Reasonable Accommodation


7.4.1 Section 15(2)(c) of the Employment Equity Act requires employers to provide reasonable accommodation for all workers, including persons living with HIV and AIDS, in order for them to access and enjoy equal employment opportunities.


7.4.2 The obligation to make reasonable accommodation may arise when a worker voluntarily discloses his or her HIV status.


7.4.3 Employers must also accommodate workers when the work or the work environment changes or impairment varies which affects the worker's ability to perform the essential functions of the job.


7.4.4 Reasonable accommodation includes but is not limited to:
(a) adapting existing facilities to make them accessible;
(b) adapting existing equipment or acquiring new equipment including computer hardware and software;
(c) re-organizing workstations;
(d) changing training and assessment materials and systems;
(e) restructuring jobs so that non-essential functions are re-assigned;
(f) adjusting working time and leave; and
(g) providing specialised supervision, training and support in the workplace.


7.5 Employee Benefits


7.5.1 Workers with HIV and AIDS must not be unfairly discriminated against in the allocation of employee benefits.


7.5.2 Where an employer offers a medical benefit, that employer must ensure that this benefit does not unfairly discriminate, directly or indirectly, against any worker on the basis of his or her real or perceived HIV status. There should be no unfair discrimination against workers or their dependants based on real or perceived HIV status to access social security systems and occupational insurance schemes or in relation to benefits under such schemes, including health care and disability, death and survivor's benefits.


7.6 Grievance Procedures


7.6.1 Grievance mechanisms and procedures must be easily accessible to ensure effective redress in cases of violation.


7.6.2 Employers must make workers aware of the grievance procedures, particularly to address unfair discrimination relating to HIV in the workplace.


7.6.3 Employers should ensure that the rights of workers with regard to HIV and AIDS, TB and other illnesses and the remedies available to them in the event of a breach of such rights become integrated into existing grievance procedures.


7.6.4 Where all internal dispute resolution process has been exhausted and the grievance remains unresolved, any party to the dispute may refer the dispute to the CCMA for the unfair discrimination within six months in terms of section 10(2) of the Employment Equity Act.


7.7 Termination of Employment


7. 7.1 Real or perceived HIV status in itself is not a valid cause for termination of employment. Workers with HIV-related illness must not be denied the opportunity of continuing to carry out their work.


7.7.2 Where a worker has become too ill to perform his or her current work, an employer is obliged to explore alternatives, including reasonable accommodation and redeployment.


7.7.3 Where a worker has become too ill to perform his or her current work, an employer is obliged to follow accepted guidelines regarding dismissal for incapacity before terminating a worker's services, as set out in the Code of Good Practice on Dismissal contained in Schedule 8 of the Labour Relations Act.


7.7.4 The employer must ensure that as far as possible, the worker's right to confidentiality regarding his or her HIV status is maintained during any incapacity proceedings. A worker must not be compelled to undergo an HIV test or to disclose his or her HIV status as part of such proceedings unless the Labour Court has authorized such a test.


7.7.5 Where a worker alleges unfair dismissal for HIV and AIDS, he or she should refer the matter to the CCMA for unfair dismissal in terms of sections 185 or 187 of the Labour Relations Act within 30 days of the dismissal.