|
|
 |
Legal Brief: testing employees for HIV/AIDS
Executive BusinessBrief-April/May 2003 Vol 8 No.2
|
The advent of HIV/AIDS has brought with it the problem of unfair discrimination due to the HIV/AIDS status of people, including that of employees, says Sifiso Msomi, an attorney at Durban law firm Garlicke & Bousfield.
In terms of Section 7(2) of the Employment Equity Act (EEA), an employer is prohibited from testing an employee to determine that employee's HIV status unless such testing is determined to be justifiable by the Labour Court in terms of Section 50(4) of that Act.
However, when companies are drawing up plans to deal with this pandemic, it is necessary that they have information on the present HIV status of their employees. One question that has been raised continuously is whether, where an employee consents to being tested for HIV/AIDS, it is necessary to go to the Labour Court for an order authorising such a test. Until recently, labour law practitioners differed on this point.
This confusion has now been clarified in the unreported case of Irvin & Johnson Ltd vs Trawler & Line Fishing Union, National Certificated Fishing & Allied Workers' Union & Others (1).
Briefly, the facts of the case were as follows:-
The company wished to arrange for the voluntary and anonymous testing of its employees, on an ongoing basis, to allow employees to determine their status at any time. This would also assist the company in its manpower planning on an ongoing basis. The company sought an order declaring that the testing in question did not fall within the ambit of Section 7(2) of the Employment Equity Act. In the alternative, the company sought an order that the testing was justified in terms of Section 7(2) of the EEA. The two Unions representing employees filed notices of non-opposition, in which they stated that they supported the application.
In summary, Acting Judge Rogers held that the legislature did not intend Section 7(2) to apply to voluntary testing. In his opinion, medical testing is not in itself an act of discrimination, and Section 7(2) is a pre-emptive measure designed to reduce the risk of discrimination on the grounds of medical condition.
It was further held that voluntary medical testing could not be the subject of legal proceedings, and it is most improbable that voluntary testing was intended to fall within the ambit of Section (7)2. The finding was that the Section as a whole applies only to compulsory testing, and not to voluntary testing.
(1) Labour Court case Number C1126/2002
(Article republished with kind permission of:-
Executive BusinessBrief
Editor: Andre van Niekerk
E-mail: [email protected]
Tel: (011) 788 0880
|
| Was this article helpful to you? |
 ?0%???? ?0%
|
|
Back
|
|
|
|
