The South African constitution and labour laws are very clear on that, no person shall be discriminated within the employment relationship or within any employment policies. This even includes people who are HIV positive or have full-blown AIDS.
South Africa has one of the highest numbers of infected and affected people in terms of HIV and AIDS in the world. Particularly people in the working age-group are severely affected in this country.
HIV and AIDS used to be one of the most critical diseases without a cure but recently, it has been established that it is manageable. Employees who are positive can still work and perform just like their negative colleagues if, the right policies are implemented in a company with regards to this disease. Nevertheless, there is still a large stigma attached to the disease and, once word has spread, infected people are often treated like outcasts which eventually, affect their productivity.
Employees are legally protected when it comes to disclosing their status. There is no legal requirement to do so and employers cannot expect employees, or applicant for employment, to undergo an HIV test.
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. Even when it has been established that an employee is infected, employers cannot demand to know if the cause of an illness is due to HIV. An employee cannot be dismissed once it is discovered that he or she is HIV positive or has AIDS. (Section 187 (1) (f) of the Labour Relations Act, No. 66 of 1995). However where there are valid reasons related to their ability to continue working and fair procedures have been followed, their services may be terminated in accordance with Section 188 (1) (a) (i).
Employers are encouraged to establish an openness culture so that employees feel comfortable to speak out about their condition or at least, inform their line-manager. Although it is highly unlikely they will transmit the disease to co-workers in normal working conditions, the burden they carry of fear of being stigmatised might affect their productivity.
Speaking out to line-managers is something that many still be considered as a giant leap. In such cases, the appointment of a consultant or mediator could be considered to establish some sort of protection between the employee and management. Mediators or consultants could defend or stimulate certain actions or decisions an infected employee might be too scared to take or pursue.
The Occupational Health and Safety Act states that 'an employer is obliged to provide, as far as is reasonably practicable, a safe workplace'. (Section 8 (1) of the Occupational Health and Safety Act, No. 85 of 1993). This may include ensuring that the risk of occupational exposure to HIV is minimised. Section 22 (1) of the Compensation for Occupational Injuries and Diseases Act, No. 130 of 1993 even states that 'an employee who is infected with HIV as a result of an occupational exposure to infected blood or bodily fluids, may apply for benefits'.
There is one exclusion though, the so-called needle infection for nurses. A nurse, who gets infected by prickling him or herself with a needle with infected blood, is ruled out as not an Incident on Duty and he or she is not entitled for compensation.
Employers cannot cure HIV or AIDS, but an open and embracing workplace attitude could make life easier for all and still get the best out of all employees.
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