What to do if an employee discloses his HIV status
Provided by Business Partners Ltd, South Africa's leading investor in SMEs
If an employee discloses to you that he is HIV-positive, you may not know how to react and what this could mean for the company. This article will help you react appropriately, both from an emotional and legal standpoint.
The first thing you should do when confronted with an HIV-positive employee, is make sure you are well informed. Having all the facts will help you deal with the actual disclosure and what steps to take (if any) within the employees work environment.
Understand that it must be very difficult for the person to disclose his status, as he has no idea how you will react. Assure the employee that this information will remain confidential and that he can not lose his job because of his status.
Remind the employee that there is every reason for newly diagnosed people to have hope today. With advances in treatment, HIV/AIDS has become a manageable and many people living with HIV are enjoying healthy, productive lives thanks to antiretrovirals (ARVs).
The employee should also know that his HIV status will have no bearing on job security, employee benefits, incentives, promotions, etc. Not only is this against the law, but you won't get the best out of anyone who is being discriminated against on the basis of his or her HIV status.
There are many resources available to you as the employer, which will enable you to support your HIV-positive employees, without it affecting your productivity or profits. These include AIDS awareness initiatives, counselling facilities and even clinics, where your workers can be treated discreetly and at no charge.
What the Labour Law says
The following are extracts of the Department of Labour's Code of Good Practice: Key Aspects of HIV/AIDS and Employment, December 2000. This code will provide you with general guidelines to manage HIV/AIDS disclosure at the workplace.
"In accordance with both the common law and Section 14 of the Constitution of South Africa Act, No 108 of 1996, all persons with HIV or AIDS have a right to privacy, including privacy concerning their HIV or AIDS status. Accordingly there is no general legal duty on an employee to disclose his or her HIV status to their employer or other employees." (7.2.2)
"Where an employee chooses to voluntarily disclose his or her HIV status to the employer or to other employees, this information may not be disclosed to others without the employee's expressed written consent. Where written consent is not possible, steps must be taken to confirm that the employee wishes to disclose his or her status."
Dealing with disclosure at work
- If any member of staff has information related to the HIV infection of another employee, this information has to be treated with the highest level of confidentiality
- The principle of confidentiality also applies where a staff member voluntarily disclosed his HIV status to some of his colleagues. It cannot be assumed that a person who discloses his HIV status to some people gives his consent for disclosure to other people
- Any process of disclosure should be led by the HIV-positive person and not by any other official of the department
Speaking about the HIV status of another employee
- Where you intend to speak about the HIV status of an employee, the person's written or otherwise specific expressed consent is required. This consent is to be obtained ahead of time of the event at which the disclosure should take place
- Disclosure to external stakeholders, the community and the media requires the written or otherwise specific expressed consent of the employee. This consent is to be obtained ahead of time of the event at which the disclosure will take place
- Disclosure on behalf of another employee should be handled in a sensitive way. Disclosure should be avoided in situations that promote stigmatisation, sensationalism or victimisation of the HIV positive employee
As we've mentioned, you can under no circumstances disclose a worker's HIV status to anyone, and the employee also has no legal obligation to disclose his status. The best thing is to provide all employees with the correct information surrounding HIV/AIDS and what to do if someone they know is HIV-positive; in this way dispelling the myths and stigma surrounding the disease.
If another employee approaches you with concerns about working with an HIV-positive colleague, assure them that all the appropriate steps are being taken to ensure everyone's safety, including that of the HIV-positive person. Follow this up with an HIV awareness drive for all your employees.
Most SME owners realise that their people are their most valuable asset. It is therefore in your best interest to provide all your employees with the means to stay healthy and productive.
Source: Department of Labour
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