THIS WORLD AIDS DAY, LET OUR ACTIONS COUNT! – ADDRESSING HIV/AIDS IN THE WORKPLACE

Annually, 1 December marks World AIDS Day, an international day dedicated to raising awareness of the HIV/ AIDS pandemic and showing support for people living with HIV/ AIDS.

According to the 2019 mid-year population estimates released by Statistics South Africa, an estimated 13.53% of the South African population (approximately 8 million people) is HIV positive and an estimated 19.07% of adults aged 15 to 49 are HIV positive. 

While topical issues such as gender-based violence, mental health and xenophobia have been making the headlines, the continuing severity of the HIV/ AIDS pandemic should not be ignored.

‘Extended absenteeism, loss of productivity, decreased employee morale and an increased staff turnover are just some examples of the costs employers may suffer as a result of failing to adequately manage HIV/AIDS in the workplace,’ says Nadine Mather, senior associate in the Employment and Benefits Practice at leading African law firm, Bowmans.

‘Considering the South African slogan for World AIDS Day 2019 is ‘Let Our Actions Count!’”, employers are encouraged to actively address HIV/ AIDS in the workplace and to put in place structures that positively impact on the lives of their employees living with HIV,” says Mather.

According to Pascale Towers, associate in the same practice at Bowmans, employees with HIV/ AIDS are not obliged to disclose their HIV status to an employer and an employer, likewise, cannot compel employees to disclose their HIV status.

‘The Employment Equity Act prohibits the testing of an employee by an employer to determine her/ his HIV status whether during an application for employment, as a condition of employment or as an eligibility requirement for a training programme, unless such testing is determined justifiable by the Labour Court,’ says Towers. ‘Where an employee, however, voluntarily discloses her/ his HIV status, an employer may not in turn disclose this information to others unless it has the express written consent of the employee concerned.’

South African law prohibits unfair discrimination against employees or prospective employees, in any employment policy or practice, based on their HIV status.

‘Similarly, harassment of employees based on their HIV status is a form of unfair discrimination and an employer that does not address such allegations of harassment may be deemed to have contravened the Employment Equity Act and may be liable to pay damages or compensation to the victim,’ adds Towers.

The Codes of Good Practice on HIV/ AIDS published under the Employment Equity Act seek to protect and promote employees’ rights by providing guidelines to employers relating to the elimination of the unfair discrimination against people living with or affected by HIV/ AIDS in accordance with international conventions and recommendations.

The Labour Relations Act provides that the dismissal of an employee is automatically unfair if the employer unfairly discriminated against the employee on any arbitrary ground, including his or her HIV status.

According to Towers, an employer would only be entitled to terminate the services of an employee for valid reasons related to the employee’s capacity to continue rendering services, and only after the employer has followed fair pre-dismissal procedures as prescribed by the Labour Relations Act, including making attempts to reasonably accommodate the employee concerned.

“Although the law can legislate against discrimination and unfair dismissal, it cannot legislate against stigma,” Mather adds. 

‘The stigma attached to HIV/ AIDS is far-reaching and often impacts on an employee’s ability to perform his or her duties in the workplace. Many employees fear that the disclosure of their HIV positive status may make them vulnerable and subject them to systemic disadvantage and discrimination. This culture can only be changed within an organisation, not enforced by law,’ says Mather.

Employers can assist in fostering a culture free of the stigma and prejudice surrounding HIV/ AIDS in the workplace by providing employees with adequate resources such as information, education, support systems and sensitivity training.

Mather offers some practical steps that companies may consider:

• Educating everyone in the workplace to ensure that all employees are aware of HIV, its implications and how to prevent its transmission.
• Implementing HIV/ AIDS policies that, among other things, commit to fair recruitment practices, confidentiality and non-discrimination for all employees, regardless of HIV status.
• Putting in place a workplace programme that promotes equality and non-discrimination against employees with HIV/ AIDS. The programme should include an assessment of the impact of HIV/ AIDS on the workplace.
• Providing guidance to managers on how to assist and manage employees who voluntarily choose to disclose their HIV status.
• Engaging employees in specialised sensitivity training that promotes an inclusive and non-stigmatised working environment and encourages employees to accept HIV positive co-workers.
• Providing free voluntary HIV testing to encourage employees to become aware of their HIV status and to seek appropriate treatment.
• Providing free counselling or employee and family assistance programs to HIV positive employees to provide the mental and emotional support they may require.

In support of World AIDS Day 2019, all employers are encouraged to remember that their actions count!