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HIV/AIDS: rules in the workplace
Susan Stelzner. 17 November 2003. Cape Times. Republished courtesy of Independent Newspapers (Pty) Ltd.
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With HIV/AIDS having an increasing impact on the workplace, employers and employees alike need to be aware of their respective rights and obligations. Here are answers to some of the most frequently asked questions:
A company cannot submit its employees to an HIV/AIDS test because of the prohibition contained in the Employment Equity Act, unless such a test is determined to be justifiable by the Labour Court. What is therefore required, is an application to the Labour Court explaining why the company needs to test, and permission must be conferred in a court order before testing can take place. However, it has been held that a court order is not required when employees voluntarily submit to testing.
It follows that employees are not obliged to inform the company that they have AIDS or are HIV positive. An employer is prohibited from discriminating against employees on the basis of their HIV status, in terms of the Employment Equity Act and the constitution. An employer may therefore not refuse to employ someone on the basis that they have AIDS or are HIV positive. The only exception is that the employer may refuse to employ someone on the basis of their HIV status where it is justifiable in terms of the job's inherent requirements.
It will not be easily accepted that the inherent requirements of the job are such that an HIV positive person cannot be employed. South African Airways lost in court for refusing to employ an HIV positive man as a steward. The court ordered SAA to employ the person as a steward.
If people who are already employed have AIDS and become ill, maybe even to the extent that they can no longer do the job properly, then they can be dealt with in accordance with the rules and policies of the company and the guidelines relating to dismissals for incapacity. This means that normal rules regarding sick and other leave would apply. The employer has no special obligation to give extra benefits or to make good shortfalls in medical expenses where such expenses are not covered by the medical aid scheme, as the employee would have joined the scheme subject to its rules.
Employees may ultimately be fairly dismissed by reason of their incapacity, but again not lightly or without considering all the possible alternatives. For instance, the employer will have to try all reasonable means of accommodating employees. This could include adapting the existing job or finding them a different job within the company.
The option of disability benefits must be fully explored. An employee should not be deprived of benefits by a premature termination of employment. If the employee contracted HIV/AIDS while at work there is more of an obligation on the employer to accommodate. An employee who contracted HIV/AIDS in a work-related incident would have a claim for compensation under the provisions of the Compensation for Occupational Injuries and Diseases Act.
To succeed with such a claim employees would have to be able to prove the causal connection between the incident and contracting HIV/AIDS. They would have to be able to prove that they did not have HIV/AIDS before the incident. This process would require the employee to submit to tests. Compensation can be increased if the employer's negligence contributed to the incident.
Employers should make sure that they comply with their obligations generally to ensure a safe working environment and specifically to avoid or deal with incidents which could cause exposure to HIV/AIDS. Employers should have regard to the Code of Good Practice on Key Aspects of HIV/AIDS and Employment and the HIV/Aids Technical Assistance Guidelines (TAG), which were issued by the Department of Labour during 2003 and are intended to complement the Code of Good Practice.
These documents contain details of the policies and procedures which should be put in place by employers to deal with HIV/AIDS at the workplace.
Susan Stelzner is head of the labour law department at Sonnenberg Hoffmann Galombik. |
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