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PRESENTS
HIV AIDS ISSUES FOR EMPLOYERS
COURTESY
FIRST PUBLISHED OCTOBER 2004
Monique METCALFE
MONIQUE
(SOUTH AFRICA)
HIV AIDS Issues for Employers
Non-discrimination
Non-discrimination against those living with HIV AIDS is a Constitutional directive, emanating from Section 9 of the Bill of Rights, although the Constitution does not specifically mention HIV AIDS.
The (South African) Promotion of Equality and Prevention of Unfair Discrimination Act, in section 34, endeavours to deal explicitly with the issue of non-discrimination against those living with HIV AIDS.
The (South African) Basic Conditions of Employment Act and the Labour Relations Act both prohibit unfair discrimination on the basis of an employee’s state of health.
The (South African) Employment Equity Act, too, protects employees and applicants for employment from discrimination on the basis of HIV status. Should the matter be subject to legal proceedings, the onus will be on the employer to prove that any discrimination or differentiation was not unfair.
The common law in South Africa is certainly progressive in addressing the issue of discrimination against those living with HIV AIDS. The landmark Constitutional Court matter between Hoffmann v SAA 2001, upheld the rights of those living with HIV AIDS against unfair discrimination in the workplace on the basis of their HIV status.
According to the (South African) Department of Labour’s Technical Assistance Guidelines (TAG) both direct and indirect discrimination exist in the workplace. Direct discrimination would involve a reference to an employee’s HIV AIDS status in terms of exclusion from opportunities or, for example, lower wages for the same work. Indirect discrimination involves practices that affect HIV AIDS sufferers more than other employees, for example, offering benefits based on the amount of sick leave not taken.
The various pieces of legislation therefore provides a wide protection for employees living with HIV AIDS ranging from recruitment, through training, promotion, demotion, remuneration, to termination of employment.
Fairness is the Issue
Grievance procedures
Dismissals
If the incapacity is of a permanent nature, the employer is obliged to reasonably accommodate the employee, by find alternatives or adapting the work environment to accommodate the employee’s disability. The ILO, Code of Practice on HIV AIDS and the World of Work, suggests rearranging working hours; access to special equipment; additional rest breaks; time off for medical appointments and flexible sick leave; part-time work and return-to-work arrangements. Once all the alternatives have been exhausted, the employer may terminate the employee’s services, in accordance with the guidelines.
If the incapacity is of a temporary nature, the extent and nature of the incapacity and alternatives to dismissal, such as adapting the work or providing alternative work, must be investigated. Factors such as the nature of the job, period of absence and the effect thereof on the employer’s operations, as well as the possibility of a temporary replacement must be considered.
These measures of reasonable accomodation implies any modification or adjustment to a job or to the workplace that is reasonably practicable and will enable a person living with HIV or AIDS to have access to or participate or advance in employment.
Employee benefits
Indeed, an HIV test cannot be made a requirement for admission to a benefit scheme, unless (South African) Labour Court authorisation has been obtained. Further, HIV status cannot be used as a reason for denying an employee access to a benefits scheme, not may such an employee be offered a different benefit scheme than other employees.
The responsibility rests on the employer to ensure their existing benefit schemes do not unfairly discriminate against any of their employees on the basis of HIV status. In addition, companies must conduct some research and implement strategies to determine and manage the impact of HIV AIDS on benefits schemes.
(South African) Department of Labour’s Technical Assistance Guidelines (TAG) further suggests that unfair discrimination is avoided by lawful and well-structured company policies on HIV AIDS, training and education for all employees to promote awareness of individual rights and an open discussion regarding HIV AIDS, as well as providing support for HIV AIDS sufferers.
Confidentiality
Common law and Section 14 of the Constitution (South African) affords every South African the right to privacy, including the right not be subjected to medical treatment (including HIV testing) without informed consent; and the right to confidentiality. An employee does not have any legal duty to disclose his/her HIV status to anyone, including the employer.
HIV AIDS, like leprosy, is a stigma-based illness, with a risk of leading to unfair discrimination. This can be distinguished from a sympathy-based illness such as cancer, which is unlikely to result in discrimination.
Therefore, confidentiality is vital to protect employees from unfair discrimination where stigma-based diseases are involved. Even during incapacity proceedings, the confidentiality of an employee’s HIV status must be respected and protected.
The problem, of course, is that employers are stuck between a rock and a hard place in terms of protecting confidentiality and implementing interventions to assist their HIV+ employees. How to implement an HIV AIDS policy without knowing which employees require intervention? Yet, the issue of confidentiality should not exempt employers from proactively intervening in terms of HIV AIDS training and treatment.
Third Party Intervention
Costs involved could certainly be steep, but is a long-term investment in the future profitability of the company. The benefits of a positive relationship with healthy employees far outweigh the costs involved.
In terms of succession planning, a third party may be the only solution in determining where a brain drain is likely in the company and where succession planning is required. A third party would be able to provide figures on a departmental level for management planning without compromising the confidentiality of the employees.
Voluntary disclosure
Despite the right to privacy and confidentiality, the TAG encourages employers to promote openness in the workplace through well-structured policies to prevent discrimination and through training and education.
HIV AIDS Workplace Policy
The policy should be drawn up with input from and consultation with all the relevant stakeholders, including the employees and their representatives, management, the providers of the medical aid and employee benefits. The document should be a comprehensive framework dealing with all issue relating to the HIV AIDS issue.
TAG’s guidelines for a HIV AIDS policy includes that the policy should clarify the company’s position on HIV AIDS and outline the HIV AIDS programme. The policy should include employment policies in terms of HIV testing, employee benefits, performance, incapacity and dismissal, as well as non-discrimination and confidentiality. Disciplinary and grievance procedures should be detailed, with explicit details regarding the implementation and evaluation of the policy.
The HIV AIDS programme should aim to prevent further infections through awareness training, voluntary HIV testing, condom distribution, and provide support, for example through reasonable accommodation and counseling, and treatment for those already infected.
The creation of an HIV AIDS committee may be a practical strategy. Other issues include succession planning and skills development and the implementation of prevention and wellness programmes.
Training on the HIV AIDS policy is a vital part of the implementation and the training should extend to all company employees, including managers, supervisors, trade union representatives and HR personnel.
Occupational Health & Safety
The company’s HIV AIDS policy should therefore include detailed instructions regarding the reduction of risk of HIV exposure and training on the universal infection control measures are vital. In addition, suitable materials must be made available, including gloves, masks and eye protection to prevent infection, as well as the provision of post-exposure prophylaxis to the affected person. However, all these measures must be clearly explained in the context that infection under such accidental exposures is highly unlikely.
Should an infection have occurred, the employer must assist the employee with the compensation claim and these procedures must be detailed in the HIV AIDS policy. According to TAG, The Compensation Fund (South African) has indicated that they would require proof that at the time of the accident the employee was HIV negative, that the other person was HIV positive, and that the affected employee subsequently became HIV positive.
HIV Testing
Code of Practice on HIV AIDS, according to the TAG suggests that testing without the (South African) Labour Court authorisation is permissible at the request of an employee, when provided as part of a health care service provided in the workplace; after an occupational accident carrying a risk of exposure to blood or other body fluids and for applying for compensation following such an occupational accident.
According to the Code: “Anonymous, unlinked surveillance or epidemiological HIV testing in the workplace may occur provided it is undertaken in accordance with ethical and legal principles regarding such research.” In this context ‘anonymous’ is interpreted to mean there is no reasonable possibility that a person’s HIV status can be deduced from the results.
However, all HIV testing must be accompanied by the employees’ informed consent, pre- and post-test counseling, procedures to ensure confidentiality and in the context of a health care worker and employee-patient relationship.
Despite the above, confidential, voluntary HIV testing and counseling are encouraged as an important part of managing HIV AIDS in the workplace. Employees who feels their right not to be tested has been violated may refer the case to the CCMA. Failing conciliation, the dispute can be taken to the Labour Court.
Provision of Health Services
There is still a grey area surrounding whether this type of healthcare would be governed under the (South African) Medical Schemes Act, the Long-Term Insurance Act or the Short-term insurance Act.
It would certainly make sense to exempt the provision of HIV AIDS treatment from the ambit of all these acts and introduce legislation that deals with the provision of HIV AIDS treatment exclusively.
To complicated matters further, the SA (South African) Revenue Service has decided to tax any HIV AIDS treatment provided by employers as a fringe benefit. The tax implicatins for both the employer and the employee are considerable.
In addition, employers are again faced with the confidentiality issue – how to pay tax for a fringe benefit for an HIV AIDS employee, without breaching their rights to confidentiality and privacy.
Conclusion
With special thanks to Neil Kirby and Bulelwa Khemese from Werksmans Incorporated.
There is a great deal of legislation that impacts the employer’s decisions about managing HIV AIDS in the workplace. The main issues emerging from the legislation revolve around non-discrimination, confidentiality and the implementation of a lawful HIV AIDS policy, including HIV AIDS testing and the provision of healthcare services.
The issue of HIV Aids should be seen in context of the legal framework – discrimination is illegal whether based on race, religion or HIV status.
However, the (South African) Employment Equity Act allows employers to distinguish, exclude or prefer any person from an employment opportunity on the basis of an inherent requirement of a job, without being considered unfair discrimination. An inherent requirement of the job is defined in the (South African) Department of Labour’s Technical Assistance Guidelines (TAG) as: “an essential characteristic, quality or capacity that is required in order to fulfill the duties of a job.” Thus, if physical strength is an inherent requirement of a job and the applicant does not meet that requirement, it cannot be construed as unfair discrimination regardless of the applicant’s HIV status. Unfair discrimination would occur if the applicant met the requirement of physical strength but was excluded from employment because of his/her HIV status.
HIV AIDS related grievances should be dealt with as swiftly and according to policy as any other grievance, but with the added dimensions of confidentiality and non-discrimination.
In the same vein, Section 187(1)(f) of the Labour Relations Act (South African)states that although no employee may be dismissed solely due to HIV AIDS status, employers may dismiss an employee when valid reasons related to their capacity to work exists and fair procedures have been followed in the dismissal.
Therefore, where an employee becomes too sick to continue to work, the employer must follow the guidelines for dismissing an employee due to temporary or permanent incapacity before terminating the employee’s services, with the very important additional issue of confidentiality being maintained. These guidelines are detailed in the Code of Good Practice on Dismissal.
The (South African) Department of Labour’s Code of Good Practice on Key Aspects of HIV AIDS and Employment states that employee benefits, including death and disability benefits, pension, provident and retirement funds, must be available to employees with HIV AIDS, on the same basis that it is available to other employees with comparable life threatening illnesses.
Confidentiality and privacy are two very important issues employers must consider in terms of HIV AIDS in the workplace and certainly relates to the issue of discrimination.
To address the conflicting issues of confidentiality and intervention, the most practical solution would be to outsource any intervention to a third party. This would protect the employees and the employers from breaching the confidentiality rights of a person, while still protecting the human resources of the company. There are companies who specialise in HIV AIDS interventions – ranging from training to treatment.
Should an employee voluntarily choose to disclose his/her HIV status, his/her rights to confidentiality and non-discrimination are not affected. This information cannot be disclosed to any other person without the employee’s written (or otherwise explicitly recorded) consent and the company’ HIV AIDS policy should expressly deal with how confidentiality will be maintained and issues of discrimination will be addressed.
An HIV AIDS policy is certainly one of the most important interventions a company can implement. Considering the maze of legislation discussed above, it may be a good idea to enlist the help of a professional in creating and implementing such a policy. The (South African) Employment Equity Act contains a Code of Practice on HIV AIDS based on the SADC Code of Good Practice on HIV AIDS and Employment; HIV AIDS and Human Rights: International Guidelines and The ILO Code of Practice on HIV AIDS and the World of Work. The (South African) Department of Labour has issued Technical Assistance Guidelines (TAG) to assist companies with the technical aspects of implementing such a policy in the workplace. The TAG contains a good practice example of a generic company workplace HIV AIDS policy. The HIV AIDS policy should be included in the mainstream policies and activities of the company for the best results. This means linking the HIV AIDS policy to other company policies and integrating it with existing practices such as staff induction.
It should also be noted that in a workplace environment, an HIV+ employee does not
pose an immediate threat to his/her fellow employees.
However, the (South African) Occupational Health and Safety Act obliges employers to provide a safe workplace, as far as is reasonable practicable and this could include ensuring safety from exposure to HIV.
This is taken a step further in Section 22 of the Compensation for Occupational Injuries and Diseases Act (South African) which provides for an employee, infected with HIV as a result of an occupational exposure to infected blood or bodily fluids, to apply for compensation, provided the employee can prove that the disease was contracted as a result of the employment.
No employer may test an employee to determine HIV AIDS status during application for employment, for access employee benefits, during termination of services or as a requirement for training and development. The (South African) Employment Equity Act, in section 7, states: “Testing of an employee to determine that employee's HIV status is prohibited unless such testing is determined justifiable by the Labour Court in terms of section 50 (4) of this Act”. Section 50(4) says that if the (South African) Labour Court finds such testing to be justifiable, certain conditions may be imposed, such as the provision of counseling and the maintenance of confidentiality.
If employers levy an amount from their employees’ wages for the provision of HIV AIDS intervention in the workplace, they may become subject to the (South African) Medical Schemes Act (MSA) in terms of the provision of healthcare services regarded as the business of medical scheme. The implications include appointing a board of trustees and the provision of the prescribed minimum benefits as per the MSA.
Perhaps a solution would be for employers and trade unions to band together and proactively lobby government to attend to the conflicting legislation which makes it all but impossible for companies to legally address the issue of HIV AIDS in the workplace. In addition, such an affiliation would enable companies to share information amongst each other on strategies that are successful and the pitfalls which should be avoided.
Resources and Acknowledgements:
(South African) Department of Labour: “HIV AIDS Technical Assistance Guidelines” and “Employment Equity Act Code Of Good Practice On Key Aspects Of HIV AIDS And Employment” (both available on www.labour.gov.za); “An ILO code of practice on HIV AIDS and the world of work”.
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