AIDS-related Legislation for Employers
Friday, May 03, 2002 The Star, 27 March 2002. Reprinted courtesy of Independent Newspapers (Pty) Ltd.
HIV/AIDS is a reality and it will hit at least 20-30% of the economically active and productive members of our population over the next 20 years. Economic productivity and consumption will fall dramatically as those who produce and consume the economic wealth die. No business will be unaffected.
The way in which employers choose to handle HIV-AIDS in their workplaces has legal implications for businesses. Legislative acts will both directly and indirectly affect the rights of employers and employees.
South Africa's Code of Good Practice on HIV-AIDS has been adopted internationally by the ILO and is a comprehensive document and good start for employers wanting to know more about the do's and don'ts of the disease.
It draws largely from the provisions of the Employment Equity Act (EEA) which prohibits discrimination against any employee, or applicant for employment, on the basis of HIV status.
Section 7 of the EEA makes it illegal for any employer to request that an employee take an HIV test. In order to test employees for HIV, employers need to apply to the Labour Court which will determine whether the employer's particular circumstances make testing justifiable. The Labour Courts have so far denied all applications.
Employers who embark on sustained HIV-AIDS awareness and prevention programmes may encourage voluntary testing, but in order for this to be successful, they should make incentives available.
The Skills Development Act provides financial incentives to employers for staff training and the insurance industry has written unit standards for HIV-AIDS workplace training.
The Labour Relations Act deals with good practice on dismissing employees for incapacity due to ill health. This is what employers will have to draw from once employees who develop full-blown AIDS are no longer fit for work.
The transmission of HIV-AIDS in the workplace is dealt with under the Occupational Health and Safety Act. 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. Workplaces should have available protective gloves and mouthpieces for mouth-to-mouth resuscitation.
Finally, the Medical Schemes Act provides that employees with HIV or AIDS may not be unfairly discriminated against in the allocation of employee benefits. 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.
The above legislation, in conjunction with the code of good practice, should guide companies in the development of an effective AIDS policy and the implementation of an intervention strategy.
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