HIV/AIDS is a disease surrounded by ignorance, prejudice, discrimination and stigma. In the workplace, unfair discrimination against people living with HIV/AIDS has been perpetuated through practices such as pre-employment HIV testing, dismissals for being HIV positive and the denial of employee benefits.

Your business will need to proactively respond to the HIV/AIDS crisis that is being experienced in most South African companies today and aim to:

• Continuously review and improve appropriate measures to manage current and future HIV/AIDS impact
• Support infected and affected employees within the work environment

In terms of the Employment Equity Act, you must treat all of your employees equally, irrespective of race, colour, creed, sexual orientation or HIV status.

You therefore cannot discriminate against any staff member with HIV or AIDS, unless the discrimination is based on an inherent requirement of the job.

Testing

You are not allowed to test employees to establish their HIV status, unless it is a requirement of the position and you will then need to seek permission from the Labour Court to carry out the tests.

If testing is allowed by the Labour Court, the following criteria must be adhered to:

• Pre and post test counseling must be given.  This is so that employees can make informed decisions and give informed permission
• Test results must be treated confidentially
• You need permission from the employee to conduct the test

However, voluntary testing is permitted in the following circumstances:

• As part of a health care service for your staff
• In the event of an occupational accident with risk of exposure to blood
• For the purposes of applying for compensation following the above.

In this case you still need a Labour Court order, pre and post test counseling must also be conducted and results must remain confidential.

Voluntary testing however, has benefits which should be communicated to your staff.  It can help to change at risk sexual behaviour and reduce the chance of infection.

A professional counselor should be used to counsel employees with HIV / AIDS.

Employees who are absent from work due to HIV / AIDS related illnesses should be dealt with as other employees who are ill, for any other reason.

Employees who become unable to work through illness, whether related to HIV / AIDS or not, can be terminated for reasons of incapacity.

Incapacity means:

The inability of an employee to perform job functions due to illness, or being incapable of doing the job.

However, before terminating for incapacity, bear the following points in mind:

• Establish the extent of the incapacity
• Consider all other avenues such as temporary replacement, alternative employment etc
• Only terminate if the employee becomes too sick to work
• Never dismiss an employee based only on HIV / AIDS status or an HIV / AIDS related illness
• Counsel the employee

When managing HIV/AIDS in the workplace, you should undertake that:

•  HIV/AIDS is to be treated no differently to any other life threatening illness. Where an employee has exhausted all his/her sick leave, application can be made for extra leave
• All employees have the right to confidentiality. This means that an employee does not have a legal duty to inform you of their HIV status, nor may a healthcare worker reveal their HIV status to you without the employee’s consent.  Should an employee voluntarily divulge their HIV status to you, it cannot be used against them, or be prejudiced or divulged without the employee’s written consent
• Where an employee is no longer able to work due to being diagnosed with full blown AIDS, then the normal process for medical incapacity should be followed

• Your HIV/ AIDS policy and its application in the work environment should be implemented, monitored and evaluated
• Progress of implementation of both preventative and curative programmes should be monitored
• A supportive non-discriminatory working environment should be created
• Provided the employee is performing his/her job well – then the HIV should not be a factor in their performance at all
• Employees should be assisted and advised to gain access to counselling or medical support through referral to outside sources

Support should include, but not limited to:

• Bereavement counselling extended to family where possible and deemed relevant
• Active role-playing in HIV/AIDS education for the infected / affected.
• Support for those who want to live openly with HIV (disclosure)