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CODE OF
GOOD PRACTICE ON ASPECTS OF HIV/AIDS EMPLOYMENT
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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.
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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.
3. 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.
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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.
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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.
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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.
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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.
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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.
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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, confidentialify 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.
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(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.
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8. Promoting a safe workplace
1. 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.
2. 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.
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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.
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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.
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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.
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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:
iii. Ongoing sustained prevention of the
spread of HIV among employees and their communities;
iv. Management of employees with HIV so
that they are able to work productively for as long as possible; and
v. 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
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15. Measure 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
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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
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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.
Information
contained herein is based on documentation available from the CCMA
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