HIV/AIDS and the labour laws - an overview
Provided by Business Partners Ltd, South Africa's leading investor in SMEs
The Constitution gives all employees the right to "fair labour practices". The equality clause also states that everyone is entitled to equality and freedom from unfair discrimination, including HIV status and the stigma surrounding the disease.
The Labour Relations Act
The Labour Relations Act (LRA) regulates the relationship between employers and employees. It prohibits unfair discrimination and protects employees against arbitrary (unclear or unfair) dismissals.
Amongst a range of other potential scenarios, clear boundaries have been established that protects employees from being dismissed simply because they are HIV-positive and from being discriminated against when it comes to employee benefits, promotions, staff training and other work-related opportunities.
The Basic Conditions of Employment Act
This Act sets out the minimum employment standards to which every employee is entitled. This includes, amongst others: payment, maximum working hours and the minimum number of days of sick leave every employee is entitled to.
Occupational Health and Safety Act
This Act requires employers to take whatever necessary steps to create a safe working environment. In an HIV/AIDS context, this means that employers must ensure that universal precautions are used when responding to an occupational accident.
Employers should also ensure that proper equipment needed to protect staff against possible infection and appropriate training in the use of universal precautions is provided.
The Compensation for Occupational Injuries and Diseases Act
This Act provides compensation for employees who are injured in the "course and scope" of their job. If an employee has been exposed to HIV during an occupational accident then:
1. An accident report should be completed and forwarded to the Workman's Compensation Commissioner
2. The employee should be tested for HIV to determine their baseline status
3. Any other person involved in the accident should be tested with their informed consent (in writing and once they have received the proper counselling)
4. The employee, if HIV-negative at the time of the accident, should be re-tested at three and six months after the accident
5. If they become positive during this period, an application for compensation may be made
Other legal issues to consider
The most basic right an HIV-positive employee is entitled to, is the right to privacy. This means that he (or she) does not have a legal duty to inform their employer of their HIV status, nor may a healthcare worker reveal their HIV status to their employer without their consent. Should an employee disclose their status to you, you may not pass this information on to anyone without the written permission of that person.
For more detailed on the laws mentioned above and any other labour relations questions you may have, visit the Department of Labour's website. From a business perspective, an HIV-positive employee is something you will have to deal with sooner or later. So not only do you have a moral obligation to your HIV-positive employees, but don't get yourself entangled in a legal battle as well.
Source: The AHI Aids On-line Help-line
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