Many employers are concerned regarding HIV or AIDS in their workplace and the protection of their staff. They often wonder if they could insist on being informed by an employee who has contracted the decease and if disciplinary action can be taken against an employee whom does not reveal their HIV or AIDS status or refuses to do so.
The answer and solution for those employers are simple.
Section 14 of the Constitution of South Africa, Act 108 of 1996, provides all with the right to privacy. This includes an employee’s right not to disclose his / her HIV or AIDS status. No person may be forced or threatened to disclose their status to any person. They also cannot be disciplined or prosecuted for non-disclosure. The prosecution may occur in the event of intentional infection in terms of Criminal Law.
There have been many articles written by legal personnel on this discussion. Most recent information obtained was that published by Labour Guide which was provided for by the Commission for Conciliation Mediation and Arbitration. This particular article discusses all aspects of how HIV is contracted, treatment and policies employers may implement in the workplace.
The bottom line from all articles is the following:
Employers may not force an employee to acknowledge their HIV or AIDS status. They cannot be disciplined for non-disclosure. If an employer disciplines an employee who refuses to disclose their HIV status or who found out that they are HIV positive, it will be regarded as automatic unfair dismissal. The punishment for such dismissal to be awarded by the CCMA can be 24 months’ compensation.
The solution for employers is education. Employers may educate their staff regarding HIV and AIDS. How they can contract the disease, how you can live with the disease and how they can prevent contraction of the disease. Employers need to ensure that First Aiders take the necessary precaution when handling open wounds.
Employers must provide a “safe haven” for those who does want to reveal their status in the sense that they will not be discriminated against. This is required in terms of section 8(1) of the Occupational Health and Safety Act, no 85 of 1993. They may implement a policy in the workplace informing staff that anyone who has made known their status is not to be treated differently; that disciplinary action will be taken against anyone who does treat someone with HIV or AIDS differently and or bullies such person.
If an employer does suspect an employee to have contracted the disease and possible contamination is plausible, an employer may approach the Labour Court for permission to have the staff member tested. This is provided for in the Employment Equity Act, no 55 of 1998.