Statistics show that South Africa has the largest total of it's population living with HIV/AIDS. The productive members of society - aged 18 to 36 - have the highest rate of infection. This means that your business can be affected through a narrowing customer and service provider base, not to mention the loss of employees due to illness or death. Is there anything you can do about it?

Why the need to look at HIV/AIDS for SMEs?

In South Africa, about 11 million people work in the formal and informal sectors, most work in SME's. This reflects the key role of the SME sector on the economy. As a growing epidemic in South Africa, there are various economic effects that HIV/AIDS can have on your small business. 

In an attempt to expand on the delivery of HIV/AIDS services, people are looking at small and medium sized enterprises (SMEs) to reach a vast amount of workers and their families. This page seeks to help SMEs to be better informed on their rights as employers and also the rights of their employees should HIV/AIDS be a factor in the company.

Why is HIV/AIDS a risk for small and medium businesses?

A study by the University of Port Elizabeth identified the disease as one of the three main factors that cause nearly 80% of South African start-ups to fail every year. The loss of a key employee due to AIDS can prove catastrophic, since in a small firm there may be no-one available or capable of taking on the specialised tasks of the employee too ill to work.

Why should SMEs care even if they have no affected staff working in the business?

The economic effects will impact first on the household and family, then will ripple out to businesses and the macro-economy. The loss of income in the household equates to a shrinking consumer base, which will have an impact on all sectors of the economy.

How does HIV/AIDS differ from other diseases in the workplace?

It strikes people in the productive age groups and is essentially 100% fatal.

What can a typical SME do to manage HIV/AIDS in the business?

• learn the facts about the disease
• raise awareness amongst employees
• have a wellness policy in place

What will a wellness program cost me?

Businesses - corporates as well as SMEs - are increasingly becoming aware that wellness in the workplace affects their bottom-line through the costs of medical benefits, recruitment, training, lower productivity through absenteeism, labour turnover and loss of experienced personnel.

Putting a program in place will be cost-effective and need not be expensive. Small businesses can start by putting an AIDS policy statement in place - at no cost.

Where can I learn more?

There are training programs available:

Visit www.ifc.org/ifcagainstaids

Where to start - SMEs often do not have resources to put a program in place?

It is not necessary to confront the problem alone. Pool resources by partnering with other local businesses. Partnerships can help SMEs analyse risk factors, design and implement focused programs, leverage resources and learn from each other's experiences.

There are often also other esources in the wider community including NGOs, faith-based or medical organisations, public programs undertaken by Ministries of Health, initiatives by Chambers of Commerce or other Associations.

Developing an HIV/AIDS policy: 8 Key stages

It is important to have an existing policy on HIV/AIDS in place. This policy is established and implemented to reinforce an ongoing commitment between employer and employee. Below is an example of a policy which a company could use for optimal handling of the situation.

1. Consultation between employers and trade unions
2. Committee on HIV/AIDS
3. Committee gets expert advice and refers to code of good practice
4. Draft policy drawn up
   
   Possible policy content
   • Non-Discrimination
   • HIV testing, confidentiality and disclosure
   • A safe working environment
   • Compensation
   • Benefits
   • Grievance procedures
   • Management of HIV/AIDS in the workplace
5. Consultation on draft policy between employers and trade unions
6. Final policy made
7. Policy implemented
8. Ongoing evaluation of policy

What are the rights of the employee and the employer?

Can an employee be forced to undergo tests and disclose the outcome?

It is against the law. No employee, or applicant for employment, may be required by their employer to undergo an HIV test in order to ascertain their HIV status.

Can an employer refuse to employ someone based on their HIV status?

No. An employer may refuse to employ a person who is clearly too ill to work (for whatever reason). But to refuse to employ someone simply because they are known or suspected to have HIV unfairly discriminates against them on the grounds of HIV status and is therefore unlawful. An employer could only refuse to employ someone as a person with HIV if being HIV negative was an inherent requirement of the job.

Do employees have the right to confidentiality at work?

Yes. The individuals HIV status is private, it is not work related. There is no legal duty on the employee to disclose their status to the employer as it is not contagious. With confidentiality, the rules are the same as in the medical profession. If you tell your employer about your HIV status, he/she can only inform other people with your consent. Telling other employees without your consent is a breach of confidentiality and means that damages can be claimed from the employer.

Can an employee be dismissed for being infected with HIV/AIDS?

As to be expected, many people with HIV start to become ill with AIDS. During this time, an employee may use up a lot of sick leave, and his/her capacity may be affected. All employees have a right to sick leave and an employer has no right to discriminate against or dismiss an employee who uses these rights. However, an employer is allowed to dismiss an employee on the grounds of incapacity and poor work performance, even if the employee has not used all their sick leave. The LRA Code of Good Practice sets out very clear procedures for employers and employees when dealing with dismissals for incapacity. The principle of the Code is that employers and employees "should treat one another with mutual respect".

What can the employer do to prevent the spread of HIV/AIDS?

HIV positive people need HIV / AIDS education to provide help and support for them, enabling them to understand and to cope with the knowledge that they are infected with HIV. Education for HIV positive people should help to prevent the onward transmission of HIV. Workplace programmes such as an HIV/AIDS policy, voluntary counselling and testing (VCT), and antiretroviral therapy (ART) provision can also be administered.

When receiving a HIV positive test result, many people feel that they have been given a death sentence. HIV / AIDS education and counselling for HIV positive people has several main goals:

• To help people to cope with the trauma of a HIV positive test result.
• To inform HIV positive people about the nature of HIV and AIDS.
• To help them to confront any discrimination they may face as a result of being infected with HIV.
• To enable them to lead full and healthy lives.
• To enable them, should they wish to, to have an active sexual life without passing the infection on to anyone else.
• To ensure that the infection isn't passed on by any other means - the sharing of injecting equipment, for example.

Education to challenge discriminations

In some countries people who are living with HIV/AIDS do not know about their rights in society. They need to be educated so they are able to challenge the discrimination, stigma and bias that they meet in society. Laws, charities and government organisations can help people to challenge discrimination and to be aware of the organisations that can provide them with the help and support they need to do this.

Education, Awareness and Prevention

Education is the most effective measure in the prevention of HIV/AIDS. The employer can provide HIV/AIDS life-skills training and empowerment programmes for all its employees. These can focus on:

• education on health promotion
• appropriate prevention and management of STIs and TB
• condom promotion and distribution
• Counselling on risk reduction.

Awareness Programmes

A workplace programme can also be implemented, this programme can look at the following aspects:cover the following aspects:

• the transmission of HIV/AIDS
• sexually Transmitted Infections (STIs) and Tuberculosis
• safer sex
• the use of condoms in preventing HIV/AIDS and STIs
• a healthy lifestyle
• attitudes myths and misconceptions
• universal precautions
• legal and ethical issues and
• women's rights

Some employers may also install condom dispensers in the restrooms, which is free to all employees.

What does the law say?

Employment Equity Act

The Code was issued in terms of Section 54(1)(a) of the Employment Equity Act, No. 55 of 1998, and is based on the principle that no person may be unfairly discriminated against on the basis of their HIV status. In order to assist employers and employees to apply this principle consistently in the workplace, the Code makes reference to other pieces of legislation. No employee, or applicant for employment, may be required by their employer to undergo an HIV test in order to ascertain their HIV status. 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.

The Act applies to all employers and workers and protects workers and job seekers from unfair discrimination, and also provides a framework for implementing affirmative action.

Click here to read the Act.

Resources

Where can I find more information on HIV/AIDS and my business?

The International Finance Corporation (IFC) www.ifc.org/ifcagainstaids

SABCOHA www.sabcoha.org

Red Ribbon www.redribbon.co.za

AIDS Analysis Africa Online www.redribbon.co.za/aaao/default.asp