CODE OF GOOD PRACTICE ON KEY ASPECTS OFHIV/AIDS AND
EMPLOYMENT
1. INTRODUCTION
1.1. The Human Immunodeficiency Virus (HIV) and the Acquired
Immune Deficiency Syndrome (AIDS) are serious public health
problems which, have socio economic, employment and human rights
implications.
1.2. It is recognised that the HIV/AIDS epidemic will affect
every workplace, with prolonged staff illness, absenteeism, and
death impacting on productivity, employee benefits, occupational
health and safety, production costs and workplace morale.
1.3. HIV knows no social, gender, age or racial boundaries, but
it is accepted that socio-economic circumstances do influence
disease patterns. HIV thrives in an environment of poverty, rapid
urbanisation, violence and destabilisation. Transmission is
exacerbated by disparities in resources and patterns of migration
from rural to urban areas. Women, particularly are more vulnerable
to infection in cultures and economic circumstances where they have
little control over their lives.
1.4. Furthermore HIV/AIDS is still a disease surrounded by
ignorance, prejudice, discrimination and stigma. In the workplace
unfair discrimination against people living with HIV and AIDS has
been perpetuated through practices such as pre-employment HIV
testing, dismissals for being HIV positive and the denial of
employee benefits.
1.5. One of the most effective ways of reducing and managing the
impact of HIV/AIDS in the workplace is through the implementation
of an HIV/AIDS policy and programme. Addressing aspects of HIV/AIDS
in the workplace will enable employers, trade unions and government
to actively contribute towards local, national and international
efforts to prevent and control HIV/AIDS. In light of this, the Code
has been developed as a guide to employers, trade unions and
employees.
1.6. Furthermore the Code seeks to assist with the attainment of
the broader goals of:
-
- eliminating unfair discrimination in the workplace based on HIV
status;
- promoting a non-discriminatory workplace in which people living
with HIV or AIDS are able to be open about their HIV status without
fear of stigma or rejection;
- promoting appropriate and effective ways of managing HIV in the
workplace;
- creating a balance between the rights and responsibilities of
all parties; and
- giving effect to the regional obligations of the Republic as a
member of the Southern African Development Community.
2. OBJECTIVES
2.1. The Code's primary objective is to set out guidelines for
employers and trade unions to implement so as to ensure individuals
with HIV infection are not unfairly discriminated against in the
workplace. This includes provisions regarding:
(i) creating a non-discriminatory work environment;
(ii) dealing with HIV testing, confidentiality and
disclosure;
(iii) providing equitable employee benefits;
(iv) dealing with dismissals; and
(v) managing grievance procedures.
2.2. The Code's secondary objective is to provide guidelines for
employers, employees and trade unions on how to manage HIV/AIDS
within the workplace. Since the HIV/AIDS epidemic impacts upon the
workplace and individuals at a number of different levels, it
requires a holistic response which takes all of these factors into
account. The Code therefore includes principles, which are dealt
with in more detail under the statutes listed in item 5.1., on the
following:
(i) creating a safe working environment for all employers and
employees;
(ii) developing procedures to manage occupational incidents and
claims for compensation;
(iii) introducing measures to prevent the spread of HIV;
(iv) developing strategies to assess and reduce the impact of
the epidemic upon the workplace; and
(v) supporting those individuals who are infected or affected by
HIV/AIDS so that they may continue to work productively for as long
as possible.
- In addition, the Code promotes the establishment of mechanisms
to foster co-operation at the following levels :
i. between employers,
employees and trade unions in the workplace; and
ii. between the workplace
and other stakeholders at a sectoral, local, provincial and
national level.
3. POLICY PRinciPLES
3.1. The promotion of equality and non-discrimination between
individuals with HIV infection and those without, and between
HIV/AIDS and other comparable health/medical conditions.
3.2. The creation of a supportive environment so that HIV
infected employees are able to continue working under normal
conditions in their current employment for as long as they are
medically fit to do so.
3.3. The protection of human rights and dignity of people living
with HIV or AIDS is essential to the prevention and control of
HIV/AIDS.
3.4. HIV/AIDS impacts disproportionately on women and this
should be taken into account in the development of workplace
policies and programmes.
3.5 Consultation, inclusivity and encouraging full participation
of all stakeholders are key principles which should underpin every
HIV/AIDS policy and programme.
4. APPLICATION AND SCOPE
4.1. All employers and employees, and their respective
organisations are encouraged to use this Code to develop, implement
and refine their HIV/AIDS policies and programmes to suit the needs
of their workplaces.
4.2. For the purposes of this code, the term "workplace" should
be interpreted more broadly than the definition given in the Labour
Relations Act, Act 66 of 1995, Section 213, to include the working
environment of, amongst others, persons not necessarily in an
employer-employee relationship, those working in the informal
sector and the self-employed.
4.3. This Code however does not impose any legal obligation in
addition to those in the Employment Equity Act and Labour Relations
Act, or in any other legislation referred to in the Code. Failure
to observe it does not, by itself, render an employer liable in any
proceedings, except where the Code refers to obligations set out in
law.
4.4. The Code should be read in conjunction with other codes of
good practice that may be issued by the Minister of Labour.
5. LEGAL FRAMEWORK
5.1. The Code should be read in conjunction with the
Constitution of South Africa Act, No. 108 of 1996, and all relevant
Legislation which includes the following:
(i) Employment Equity Act, No. 55 of 1998;
(ii) Labour Relations Act, No. 66 of 1995;
(iii) Occupational Health and Safety Act, No. 85 of 1993;
(iv) Mine Health and Safety Act, No. 29 of 1996;
(v) Compensation for Occupational Injuries and Diseases Act, No.
130 of 1993;
(vi) Basic Conditions of Employment Act, No. 75 of 1997; and
(vii) Medical Schemes Act, No. 131 of 1998.
(viii) Promotion of Equality and Prevention of Unfair
Discrimination Act, No. 4 of 2000.
5.2. The contents of this code should be taken into account when
developing, implementing or reviewing any workplace policies or
programmes in terms of the statutes listed above.
5.3. The following are selected, relevant sections contained in
certain of the above-mentioned legislation. These should be read in
conjunction with other legislative provisions.
5.3.1. The Code is issued in terms of Section 54(1)(a) of the
Employment Equity Act, No 55 of 1998 and is based on the principle
that no person may be unfairly discriminated against on the basis
of their HIV status. In order to assist employers and employees to
apply this principle consistently in the workplace, the Code makes
reference to other pieces of legislation.
5.3.2. Section 6(1) of the Employment Equity Act provides that
no person may unfairly discriminate against an employee, or an
applicant for employment, in any employment policy or practice, on
the basis of his or her HIV status. In any legal proceedings in
which it is alleged that any employer has discriminated unfairly,
the employer must prove that any discrimination or differentiation
was fair.
5.3.3. No employee, or applicant for employment, may be required
by their employer to undergo an HIV test in order to ascertain
their HIV status. HIV testing by or on behalf of an employer may
only take place where the Labour Court has declared such testing to
be justifiable in accordance with Section 7(2) of the Employment
Equity Act.
5.3.4. In accordance with Section 187(1)(f) of the Labour
Relations Act, No. 66 of 1995, an employee with HIV/AIDS may not be
dismissed simply because he or she is HIV positive or has AIDS.
However where there are valid reasons related to their capacity to
continue working and fair procedures have been followed, their
services may be terminated in accordance with Section
188(1)(a)(i).
5.3.5. In terms of Section 8(1) of the Occupational Health and
Safety Act, No. 85 of 1993; an employer is obliged to provide, as
far as is reasonably practicable, a safe workplace. This may
include ensuring that the risk of occupational exposure to HIV is
minimised.
5.3.6. Section 2(1) and Section 5(1) of the Mine Health and
Safety Act, No. 29 of 1996 provides that an employer is required to
create, as far as is reasonably practicable, a safe workplace. This
may include ensuring that the risk of occupational exposure to HIV
is minimised.
5.3.7. An employee who is infected with HIV as a result of an
occupational exposure to infected blood or bodily fluids, may apply
for benefits in terms of Section 22(1) of the Compensation for
Occupational Injuries and Diseases Act, No. 130 of 1993.
5.3.8. In accordance with the Basic Conditions of Employment
Act, No. 75 of 1997, every employer is obliged to ensure that all
employees receive certain basic standards of employment, including
a minimum number of days sick leave [Section 22(2)].
5.3.9. In accordance with Section 24(2)(e) of the Medical
Schemes Act, No 131 of 1998, a registered medical aid scheme may
not unfairly discriminate directly or indirectly against its
members on the basis of their "state of health". Further in terms
of s 67(1)(9) regulations may be drafted stipulating that all
schemes must offer a minimum level of benefits to their
members.
5.3.10. In accordance with both the common law and Section 14 of
the Constitution of South Africa Act, No. 108 of 1996, all persons
with HIV or AIDS have a right to privacy, including privacy
concerning their HIV or AIDS status. Accordingly there is no
general legal duty on an employee to disclose his or her HIV status
to their employer or to other employees.
6. PROMOTING A NON-DISCRIMINATORY WORK
ENVIRONMENT
6.1. No person with HIV or AIDS shall be unfairly discriminated
against within the employment relationship or within any employment
policies or practices, including with regard to:
i. recruitment
procedures, advertising and selection criteria;
ii. appointments, and the
appointment process, including job placement;
iii. job classification
or grading;
iv. remuneration,
employment benefits and terms and conditions of employment;
v. employee assistance
programmes;
vi. job assignments;
vii. the workplace and
facilities;
viii. occupational health
and safety;
ix. training and
development;
x. performance evaluation
systems;
xi. promotion, transfer
and demotion;
xii. disciplinary
measures short of dismissal; and
xiii. termination of
services.
6.2. To promote a non-discriminatory work environment based on
the principle of equality, employers and trade unions should adopt
appropriate measures to ensure that employees with HIV and AIDS are
not unfairly discriminated against and are protected from
victimisation through positive measures such as:
(i) preventing unfair discrimination and stigmatisation of
people living with HIV or AIDS through the development of HIV/AIDS
policies and programmes for the workplace;
(ii) awareness, education and training on the rights of all
persons with regard to HIV and AIDS;
(iii) mechanisms to promote acceptance and openness around
HIV/AIDS in the workplace;
(iv) providing support for all employees infected or affected by
HIV and AIDS; and
(v) grievance procedures and disciplinary measures to deal with
HIV-related complaints in the workplace.
7. HIV TESTING, CONFIDENTIALITY AND
DISCLOSURE
7.1. HIV Testing
7.1.1.No employer may require an employee, or an applicant for
employment, to undertake an HIV test in order to ascertain that
employee's HIV status. As provided for in the Employment Equity
Act, employers may approach the Labour Court to obtain
authorisation for testing.
7.1.2. Whether s 7(2) of the Employment Equity Act prevents an
employer-provided health service supplying a test to an employee
who requests a test, depends on whether the Labour Courts would
accept that an employee can knowingly agree to waive the protection
in the section. This issue has not yet been decided by the
courts.
7.1.3. In implementing the sections below, it is recommended
that parties take note of the position set out in item 7.1.2.
7.1.4. Authorised testing
Employers must approach the Labour Court for authorisation in,
amongst others, the following circumstances:
(i) during an application for employment;
(ii) as a condition of employment;
(iii) during procedures related to termination of
employment;
(iv) as an eligibility requirement for training or staff
development programmes; and
(v) as an access requirement to obtain employee benefits.
7.1.5. Permissable testing
(a) An employer may provide testing to an employee who has
requested a test in the following circumstances:
i. As part of a health
care service provided in the workplace;
ii. In the event of an
occupational accident carrying a risk of exposure to blood or other
body fluids;
iii. For the purposes of
applying for compensation following an occupational accident
involving a risk of exposure to blood or other body fluids.
(b) Furthermore, such testing may only take place within the
following defined conditions:
i. At the initiative of
an employee;
ii. Within a health care
worker and employee-patient relationship;
iii. With informed
consent and pre- and post-test counselling, as defined by the
Department of Health's National Policy on Testing for HIV; and
iv. With strict
procedures relating to confidentiality of an employee's HIV status
as described in clause 7.2 of this Code.
7.1.6 All testing, including both authorised and permissible
testing, should be conducted in accordance with the Department of
Health's National Policy on Testing for HIV issued in terms of the
National Policy for Health Act, No. 116 of 1990.
7.1.7. Informed consent means that the individual has been
provided with information, understands it and based on this has
agreed to undertake the HIV test. It implies that the individual
understands what the test is, why it is necessary, the benefits,
risks, alternatives and any possible social implications of the
outcome.
7.1.8. Anonymous, unlinked surveillance or epidemiological HIV
testing in the workplace may occur provided it is undertaken in
accordance with ethical and legal principles regarding such
research. Where such research is done, the information obtained may
not be used to unfairly discriminate against individuals or groups
of persons. Testing will not be considered anonymous if there is a
reasonable possibility that a person's HIV status can be deduced
from the results.
7.2. Confidentiality and Disclosure
7.2.1. All persons with HIV or AIDS have the legal right to
privacy. An employee is therefore not legally required to disclose
his or her HIV status to their employer or to other employees.
7.2.2. Where an employee chooses to voluntarily disclose his or
her HIV status to the employer or to other employees, this
information may not be disclosed to others without the employee's
express written consent. Where written consent is not possible,
steps must be taken to confirm that the employee wishes to disclose
his or her status.
7.2.3. Mechanisms should be created to encourage openness,
acceptance and support for those employers and employees who
voluntarily disclose their HIV status within the workplace,
including:
(i) encouraging persons openly living with HIV or AIDS to
conduct or participate in education, prevention and awareness
programmes;
(ii) encouraging the development of support groups for employees
living with HIV or AIDS; and
(iii) ensuring that persons who are open about their HIV or AIDS
status are not unfairly discriminated against or stigmatised.
8. PROMOTING A SAFE WORKPLACE
- An employer is obliged to provide and maintain, as far as
is reasonably practicable, a workplace that is safe and without
risk to the health of its employees.
- The risk of HIV transmission in the workplace is minimal.
However occupational accidents involving bodily fluids may occur,
particularly in the health care professions. Every workplace should
ensure that it complies with the provisions of the Occupational
Health and Safety Act, including the Regulations on Hazardous
Biological Agents, and the Mine Health and Safety Act, and that its
policy deals with, amongst others :
i. the risk, if any, of
occupational transmission within the particular workplace;
ii. appropriate training,
awareness, education on the use of universal infection control
measures so as to identify, deal with and reduce the risk of HIV
transmission in the workplace;
iii. providing
appropriate equipment and materials to protect employees from the
risk of exposure to HIV;
iv. the steps that must
be taken following an occupational accident including the
appropriate management of occupational exposure to HIV and other
blood borne pathogens, including access to post-exposure
prophylaxis;
v. the procedures to be
followed in applying for compensation for occupational
infection;
vi. the reporting of all
occupational accidents; and
vii. adequate monitoring
of occupational exposure to HIV to ensure that the requirements of
possible compensation claims are being met.
9. COMPENSATION FOR OCCUPATIONALLY ACQUIRED
HIV
9.1. An employee may be compensated if he or she becomes
infected with HIV as a result of an occupational accident, in terms
of the Compensation for Occupational Injuries and Diseases Act.
9.2. Employers should take reasonable steps to assist employees
with the application for benefits including:
(i) providing information to affected employees on the
procedures that will need to be followed in order to qualify for a
compensation claim; and
(ii) assisting with the collection of information which will
assist with proving that the employees were occupationally exposed
to HIV infected blood.
9.3. Occupational exposure should be dealt with in terms of the
Compensation for Occupational Injuries and Diseases Act. Employers
should ensure that they comply with the provisions of this Act and
any procedure or guideline issued in terms thereof.
10. EMPLOYEE BENEFITS
10.1. Employees with HIV or AIDS may not be unfairly
discriminated against in the allocation of employee benefits.
10.2. Employees who become ill with AIDS should be treated like
any other employee with a comparable life threatening illness with
regard to access to employee benefits.
10.3. Information from benefit schemes on the medical status of
an employee should be kept confidential and should not be used to
unfairly discriminate.
10.4. Where an employer offers a medical scheme as part of the
employee benefit package it must ensure that this scheme does not
unfairly discriminate, directly or indirectly, against any person
on the basis of his or her HIV status.
11. DISMISSAL
11.1. Employees with HIV/AIDS may not be dismissed solely on the
basis of their HIV/AIDS status.
11.2. Where an employee has become too ill to perform their
current work, an employer is obliged to follow accepted guidelines
regarding dismissal for incapacity before terminating an employee's
services, as set out in the Code of Good Practice on Dismissal
contained in Schedule 8 of the Labour Relations Act.
11.3. The employer should ensure that as far as possible, the
employee's right to confidentiality regarding his or her HIV status
is maintained during any incapacity proceedings. An employee cannot
be compelled to undergo an HIV test or to disclose his or her HIV
status as part of such proceedings unless the Labour Court
authorised such a test.
12. GRIEVANCE PROCEDURES
12.1. Employers should ensure that the rights of employees with
regard to HIV/AIDS, and the remedies available to them in the event
of a breach of such rights, become integrated into existing
grievance procedures.
12.2. Employers should create an awareness and understanding of
the grievance procedures and how employees can utilise them.
12.3. Employers should develop special measures to ensure the
confidentiality of the complainant during such proceedings,
including ensuring that such proceedings are held in private.
13. MANAGEMENT OF HIV IN THE WORKPLACE
13.1. The effective management of HIV/AIDS in the workplace
requires an integrated strategy that includes, amongst others, the
following elements:
13.1.1. An understanding and assessment of the impact of
HIV/AIDS on the workplace; and
13.1.2. Long and short term measures to deal with and reduce
this impact, including:
i. An HIV/AIDS Policy for
the workplace
ii. HIV/AIDS Programmes,
which would incorporate:
- Ongoing sustained prevention of the spread of HIV among
employees and their communities;
- Management of employees with HIV so that they are able to work
productively for as long as possible; and
- Strategies to deal with the direct and indirect costs of
HIV/AIDS in the workplace.
14. ASSESSING THE IMPACT OF HIV/AIDS ON THE
WORKPLACE
14.1. Employers and trade unions should develop appropriate
strategies to understand, assess and respond to the impact of
HIV/AIDS in their particular workplace and sector. This should be
done in cooperation with sectoral, local, provincial and national
initiatives by government, civil society and non-governmental
organisations.
14.2. Broadly, impact assessments should include:
(i) Risk profiles; and
(ii) Assessment of the direct and indirect costs of
HIV/AIDS;
14.3. Risk profiles may include an assessment of the
following:
i. The vulnerability of
individual employees or categories of employees to HIV
infection;
ii. The nature and
operations of the organisation and how these may increase
susceptibility to HIV infection (eg migrancy or hostel
dwellings);
iii. A profile of the
communities from which the organisation draws its employees;
iv. A profile of the
communities surrounding the organisation's place of operation;
and
v. An assessment of the
impact of HIV/AIDS upon their target markets and client base.
14.4. The assessments should also consider the impact that the
HIV/AIDS epidemic may have on:
(i) Direct costs such as costs to employee benefits, medical
costs and increased costs related to staff turnover such as
training and recruitment costs and the costs of implementing an
HIV/AIDS programme;
(ii) Indirect costs such as costs incurred as a result of
increased absenteeism, employee morbidity, loss of productivity, a
general decline in workplace morale and possible
workplace disruption;
14.5. The cost effectiveness of any HIV/AIDS
interventions should also be measured as part of an impact
assessment
15. MEASURES TO DEAL WITH HIV/AIDS WITHIN THE
WORKPLACE
15.1. A Workplace HIV/AIDS Policy
15.1.1. Every workplace should develop an HIV/AIDS policy, in
order to ensure that employees affected by HIV/AIDS are not
unfairly discriminated against in employment policies and
practices. This policy should cover:
(i) the organisation's position on HIV/AIDS;
(ii) an outline of the HIV/AIDS programme;
(iii) details on employment policies (e.g. position regarding
HIV testing, employee benefits, performance management and
procedures to be followed to determine medical incapacity and
dismissal);
(iv) express standards of behaviour expected of employers and
employees and appropriate measures to deal with deviations from
these standards;
(v) grievance procedures in line with item 12 of this Code;
(vi) set out the means of communication within the organisation
on HIV/AIDS issues;
(vii) details of employee assistance available to persons
affected by HIV/AIDS;
(viii) details of implementation and coordination
responsibilities; and
(ix) monitoring and evaluation mechanisms.
15.1.2. All policies should be developed in consultation with
key stakeholders within the workplace including trade unions,
employee representatives, occupational health staff and the human
resources department.
15.1.3. The policy should reflect the nature and needs of the
particular workplace.
15.1.4. Policy development and implementation is a dynamic
process, so the workplace policy should be:
(i) communicated to all concerned;
(ii) routinely reviewed in light of epidemiological and
scientific information; and
(iii) monitored for its successful implementation and evaluated
for its effectiveness.
15.2. Developing Workplace HIV/AIDS Programmes
15.2.1. It is recommended that every workplace works towards
developing and implementing a workplace HIV/AIDS programme aimed at
preventing new infections, providing care and support for employees
who are infected or affected, and managing the impact of the
epidemic in the organisation.
15.2.2. The nature and extent of a workplace programme should be
guided by the needs and capacity of each individual workplace.
However, it is recommended that every workplace programme should
attempt to address the following in cooperation with the sectoral,
local, provincial and national initiatives:
(i) hold regular HIV/AIDS awareness programmes;
(ii) encourage voluntary testing;
(iii) conduct education and training on HIV/AIDS;
(iv) promote condom distribution and use;
(v) encourage health seeking behaviour for STD's;
(vi) enforce the use of universal infection control
measures;
(vii) create an environment that is conducive to openness,
disclosure and acceptance amongst all staff;
(viii) endeavour to establish a wellness programme for employees
affected by HIV/AIDS;
(ix) provide access to counselling and other forms of social
support for people affected by HIV/AIDS;
(x) maximise the performance of affected employees through
reasonable accommodation, such as investigations into alternative
sick leave allocation;
(xi) develop strategies to address direct and indirect costs
associated with HIV/AIDS in the workplace, as outlined under item
14.4
(xii) regularly monitor, evaluate and review the programme.
15.2.3. Employers should take all reasonable steps to assist
employees with referrals to appropriate health, welfare and
psycho-social facilities within the community, if such services are
not provided at the workplace
16. INFORMATION AND EDUCATION
16.1. The Department of Labour should ensure that copies of this
code are available and accessible.
16.2. Employers and employer organisations should include the
Code in their orientation, education and training programmes of
employees.
16.3. Trade unions should include the Code in their education
and training programmes of shop stewards and employees.
GLOSSARY
Affected employee: an employee who is affected in any
way by HIV/AIDS eg if they have a partner or a family member who is
HIV positive.
AIDS: AIDS is the acronym for "acquired immune
deficiency syndrome". AIDS is the clinical definition given to the
onset of certain life-threatening infections in persons whose
immune systems have ceased to function properly as a result of
infection with HIV.
Epidemiological: The study of disease patterns, causes,
distribution and mechanisms of control in society.
HIV: HIV is the acronym for "human immuno
deficiency virus". HIV is a virus which attacks and may ultimately
destroy the body's natural immune system.
HIV testing: taking a medical test to determine a
person's HIV status. This may include written or verbal questions
inquiring about previous HIV tests; questions related to the
assessment of 'risk behaviour' (for example questions regarding
sexual practices, the number of sexual partners or sexual
orientation); and any other indirect methods designed to ascertain
an employee's or job applicant's HIV status.
HIV positive: having tested positive for HIV
infection.
Infected employee: an employee who has tested positive
for HIV or who has been diagnosed as having HIV/AIDS.
Informed consent: a process of obtaining consent from a
patient which ensures that the person fully understands the nature
and implications of the test before giving his or her agreement to
it.
Policy: a document setting out an organisation's
position on a particular issue.
Pre and post test counselling: a process of counselling
which facilitates an understanding of the nature and purpose of the
HIV test. It examines what advantages and disadvantages the test
holds for the person and the influence the result, positive or
negative, will have on them.
Reasonable Accommodation: means any modification or
adjustment to a job or to the workplace that is reasonably
practicable and will enable a person living with HIV or AIDS to
have access to or participate or advance in employment.
STDs: acronym for "sexually transmitted diseases".
These are infections passed from one person to another during
sexual intercourse, including syphilis, gonorrhea and HIV.
Surveillance Testing: This is anonymous, unlinked
testing which is done in order to determine the incidence and
prevalence of disease within a particular community or group to
provide information to control, prevent and manage the disease.