Specific application of the law

1. HIV/AIDS in the workplace

• Employers may not discriminate against HIV-positive employees or victimise them in any way.
• No person may unfairly discriminate directly or indirectly against an employee in any employment policy or practice (e.g. recruitment, appointment, remuneration, training and development, promotion, transfer and dismissal) on the grounds of HIV status. It is however not unfair discrimination to distinguish between applicants or exclude or prefer any particular person on the basis of an inherent requirement of a job.
• People who are infected with HIV or manifesting the symptoms of AIDS must by law receive the same benefits (in all matters affecting sick leave, disability, medical aid, pension funds and death) that are applicable to members who are not infected with HIV. This means that people with AIDS should receive the same benefits (if they are suffering from chronic or terminal diseases or illnesses) that they would have received if they had not had AIDS or suffered from any complicating or opportunistic HIV-related infection
• No employer is therefore allowed to withhold medical aid or any other benefits from an HIV-infected employee on the grounds of his or her HIV status.
• Employers are not allowed to request employees and applicants for employment to go for an HIV test unless an employer can prove that testing is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job.
• If employers believe that testing is justifiable, they must apply for permission from the Labour Court - which will then determine if such testing is permissible in terms of the Employment Equity Act of 1998.
• No HIV-positive employee has to disclose his/her HIV status to his/her employer. It may however benefit the HIV-infected person if his or her employer knows about the condition so that the employer can make provision for the employee to take time off to visit doctors, receive various kinds of treatment - and even so that the employer can regulate or reduce the HIV-infected person’s workload as and when circumstances require.
• Employers are not allowed to dismiss (demote or transfer) HIV-infected employees on the basis of their HIV status alone - provided that they are otherwise qualified to do the job and provided that they are able to work.
• The law requires employers to make reasonable accommodations such as flexible working hours, rest periods, adapted duties, or extended sick pay with reduced (or no) pay, to help employees who are incapacitated on the grounds of ill health to keep their jobs. However, the law recognises permanent incapacity as a ground on which employment may be terminated after all other alternatives have been investigated.
• Information and education on HIV and AIDS, as well as access to counselling and referral, should be provided in the workplace after appropriate consultation with representative employee groups.

2. HIV/AIDS and the medical profession

• It is illegal for health care professionals to refuse emergency treatment or life-saving treatment to HIV-infected people on the grounds of their HIV infection. It is also unethical, and in terms of the Constitution, probably illegal for doctors, dentists, nurses and other health care professionals to deny treatment to any person on the grounds of his or her HIV status.
• There is no reason at all why a health care professional should refuse to treat a person with HIV infection or AIDS. If the necessary universal precautions are followed and if the health care professional is careful to avoid accidents, there is no way that he or she can contract HIV from an infected patient.
• Although all medical professionals should be taking precautions against potential HIV transmission, HIV-infected individuals should be advised (never coerced, pressurised or forced) to inform their doctors about their infection because it may impact on their treatment and care.
• Medical practitioners are under a legal and ethical duty to ensure that patient information is not revealed to third parties (e.g. other doctors) without the patient’s expressed consent. A patient’s right to confidentiality and privacy should be respected at all times. Under no circumstances may a patient’s HIV status be communicated to anyone without prior permission (preferably in writing) from the person.
• The client has the right to bodily and psychological integrity, and must give his or her informed consent to any medical procedures or tests that are about to be carried out. Counsellors should at all times adhere to the law and to the Constitution of South Africa in their handling of HIV/AIDS clients.

(a)Frequently Asked Question:

Should HIV-infected employees (e.g. nurses) inform their employers about their HIV-positive status?
A person is under no legal obligation to reveal his/her HIV status to the employer because HIV is not a highly contagious disease. In the medical situation however employers are only able to ensure that all reasonable measures are taken to prevent patients from being accidentally infected if they are aware of the nurse's HIV status. It is therefore the ethical (although not legal) duty of nurses to inform their employers if they are diagnosed as HIV positive.

The employer must keep this information confidential, and may not inform other people without the infected nurse’s expressed consent. The employer may not discriminate in any way against the employee who has voluntary made his or her HIV-positive status known.

3. HIV/AIDS in schools and tertiary institutions

• Every child has the right to education - whether they are HIV positive or not. HIV-positive children can safely attend the same school as HIV-negative children.
• No learner, student or educator with HIV/AIDS may be unfairly discriminated against either directly or indirectly - and they should all be treated in a just, humane and life-affirming way.
• To prevent discrimination, all learners, students and educators should be educated about the fundamental human rights that are enunciated in the Constitution.
• No learner or student may be denied admission to or continued attendance at a school or an institution on account of his or her HIV status.
• No educator may be denied the right to be appointed in a post, to teach or to be promoted on account of his or her HIV status, and his or her HIV status may also not be a reason for dismissal or for not renewing an educator’s employment contract.
• There is no medical justification for the routine testing of learners, students or educators for evidence of HIV infection. The testing of learners or students for HIV infection as a prerequisite for admission to, or for continued attendance at the school or institution, is prohibited.
• The testing of educators for HIV as a prerequisite for an appointment or continued service, is also prohibited by law.
• No learner, student, parent or educator is compelled to disclose his or her (or a child’s) HIV status to the school or institution or employer. If they choose to do so, any learner or student above the age of 14 years, or his or her parents, is free to disclose an HIV-positive status voluntarily. Any person to whom such information has been disclosed must keep this information confidential.
• A continuing, age-appropriate lifeskills and HIV/AIDS education programme must be implemented at all schools and institutions for all learners, students, educators and other staff members. Measures must also be implemented at hostels.
• Refusal to study with a learner of student, or to work with or be taught by an educator or other staff member with HIV/AIDS, should be pre-empted by providing accurate and understandable information on HIV/AIDS to all educators, staff members, learners, students and their parents.