Rights and HIV

• Losing their jobs or not being offered jobs
• Being ostracised by their families, friends, workmates and communities, and suffering various forms of ill-treatment including discrimination, harassment and physical abuse
• Inadequate access to care and treatment. It is estimated that at least 50% of the people in South Africa who require antiretroviral treatment in order to stay alive are not accessing it. The reasons for this are many but those that pose human rights violations include: being turned away by the hospital or clinic even though a person fulfils the treatment criteria*; stopping treatment because a person does not want to lose his or her disability grant once their CD4 count rises above a certain point; insufficient money for travel costs to the nearest treatment centre; and insufficient money to buy food, which needs to consumed with ARV medication
• Inadequate protection of the law. See the summary below of the rights of people living with HIV and AIDS in the workplace with regard to South African laws. In some cases people living with HIV and AIDS can also be subject to arbitrary harassment, arrest and even physical abuse by the authorities. This needs to be reported immediately to one of the human rights organisations
• Being denied equal access to the goods and services necessary to realise their basic human rights

• A person who is HIV positive does not have a duty to give this information to his or her employer because of their right to privacy
• If you tell your employer about your HIV status, the employer cannot tell anyone else without your consent. If the employer tells anyone else, this is breaking your privacy and right to confidentiality, and it is possibly an unfair labour practice
• A doctor or health care worker who tells an employer about an employee's HIV status without their consent is acting against the law. This is breaking the employee's right to confidentiality
• An employer cannot demand to know if the cause of an illness is HIV infection
• An employer cannot refuse to employ you because you have HIV
• An employer cannot dismiss you because you have HIV
• An employer cannot dismiss you because you have HIV, even if other employees refuse to work with you
• The Promotion of Equality and Prevention of Unfair Discrimination Act also protects an HIV-positive person from unfair discrimination in the workplace

The Labour Relations Act (LRA)
The LRA gives employees the right to be treated equally. It is an unfair labour practice to discriminate against an employee on any grounds, including, race, gender, sex, colour, sexual orientation, age, disability, religion, conscience, sexual orientation, belief, political opinion, culture, language, marital status or family responsibility.
Discrimination is 'automatically unfair' if it breaks any of the basic rights of employees. If a person is discriminated against because of their disability for example, this is automatically unfair and the case will go to the Labour Court.

The Employment Equity Act (EEA)
The Employment Equity Act of 1998 aims to create equality in the workplace by prohibiting unfair discrimination on the same grounds listed in the Constitution and the Labour Relations Act (LRA). Both the Constitution and the LRA protect people living with HIV and AIDS from being treated unfairly in at work, because both laws say it is against the law to unfairly discriminate against a person with a disability.

The EEA is more specific about the rights of people living with HIV or AIDS. The EEA explicitly prohibits unfair discrimination against people at work on grounds of their HIV status. The EEA prohibits testing for HIV in the workplace unless this is authorised by the Labour Court. If any employer (state or private) wants to test a person for HIV before employing her/him, they will have to get permission from the Labour Court to do this.

The EEA doesn't cover members of the South African National Defence Force, the Secret Service or the National Intelligence Agency. But members of these organisations can still take their cases to the Constitutional Court.

Case study: Hoffman v South African Airways (2000)
Mr Hoffman applied for a job as a cabin attendant with South African Airways (SAA) and was asked by SAA to go for an HIV test. The test showed that he was HIV positive. SAA refused to give Mr Hoffman the job because, they said, part of his job involved travelling to different countries and he would need to have a yellow fever vaccination. It is not advisable for someone with HIV to have these vaccinations. SAA said that this was an inherent requirement of the job (essential for the job) in the airline and therefore they couldn't employ him.

The case was referred to the Constitutional Court. The court was asked to decide if SAA had gone against Hoffman's rights to equality, dignity and fair labour practices. The court decided:

• That SAA had discriminated against Hoffman
• The discrimination was unfair and infringed his dignity
• Being HIV negative was not an inherent requirement of the job of being a cabin attendant; they should have taken greater steps to investigate how Hoffman's immune system could have dealt with travelling and the possibility of getting a strange disease

Accidents at work - the Occupational Health and Safety Act and Mine Health and Safety Act
Sometimes an accident at work can cause a bleeding injury. If the injured person is HIV-positive and someone who tries to help him or her also has an open wound, there is a small chance of the helper becoming infected if his or her wound comes into contact with the injured person's blood. The employer has a responsibility to make sure that the workplace is safe and that employees are not at risk of HIV infection at work.

There are new regulations issued by the Department of Labour which say:

• Employers must keep rubber gloves in the first aid box
• All staff must be trained so that they know what safety measures to take if an accident happens
  

Compensation for Occupational Injuries and Diseases Act (No 130 of 1993) (COIDA) gives employees the right to compensation if they are injured or become ill at work. If you get infected with HIV because of a workplace accident, you can claim for compensation.

The Medical Schemes Act
Medical aid as a form of insurance is an important employee benefit in the workplace. In the past, the majority of medical schemes refused to cover illnesses that were linked to HIV infection. The Medical Schemes Amendment Act of 1998 prohibits discrimination on the grounds of 'state of health'. This covers a person living with HIV or AIDS. It means that the medical scheme cannot refuse to cover reasonable care that could prolong the health and lives of people living with HIV or AIDS.

The Medical Schemes Act came into operation on 1 January 2001. The Act stops medical schemes from discriminating against people living with HIV or AIDS by stating:

• The Medical Aid Scheme may not be registered if it discriminates directly or indirectly against any person on the basis of their health status
• All schemes must offer a minimum level of benefits, decided by the government, to employees with HIV or AIDS

These minimum levels of benefits include:

• Treatment for all opportunitistic infections for HIV or AIDS
• Hospital admissions with treatment
• Provision of antiretroviral drugs is not compulsory
  

• Creating a non-discriminatory work environment
• HIV testing, confidentiality and disclosure
• Providing equitable employee benefits
• Dismissals
• Managing grievance procedures
  

The Code also provide guidelines for employers, employees and trade unions on how to manage HIV and AIDS in the workplace. This is based on the fact that the HIV and AIDS epidemic can affect the workplace and people working there on a number of different levels. These guidelines look at the problem as a whole. It requires people to take all factors into account when managing HIV in the workplace, for example:

• Creating a safe working environment for all employers and employees
• Developing procedures to manage occupational incidents and claims for compensation
• Introducing measures to prevent the spread of HIV
• Developing strategies to assess and reduce the impact of the epidemic on the workplace
• Supporting individuals who are infected or affected by HIV and AIDS so that they can continue to work productively for as long as possible
  

What happens if you become too ill to work?
Eventually, many people with HIV start to become ill and their capacity to work is affected. In other words, because of their illness they are not able to do the job properly. So, the employer can dismiss them (including a person with AIDS) on grounds of incapacity. All employees have a right to sick leave and an employer has no right to discriminate against or dismiss an employee who uses these rights. The Basic Conditions of Employment Act says an employee can have 6 weeks paid sick leave over any 3-year cycle.

However, an employer is allowed to dismiss an employee on grounds of incapacity and poor work performance, even if the employee has not used all their sick leave. This means that if an employee is unable to do their job properly because of their illness then the employer will eventually be able to dismiss them. There are very clear guidelines for employers to follow when they want to dismiss an employee for incapacity.  For example, the employer must see whether the incapacity is going to be permanent and must also investigate alternative employment for the employee.

What can you do to protect your rights at work?
Employees can take disputes about dismissals or discrimination to a Bargaining Council or the Commission for Conciliation, Mediation and Arbitration (CCMA). The Bargaining Council or CCMA will try to settle the dispute by conciliation, mediation or arbitration. Cases about unfair discrimination and automatically unfair dismissal will be referred to the Labour Court. Employees can appeal against decisions of the Labour Court by going to the Labour Appeal Court.

The AIDS Law Project's assessment of HIV and AIDS workplace discrimination
South Africa has a strong legislative framework aimed at preventing HIV-related discrimination in the workplace. Guidelines developed by the International Labour Organisation (ILO) and the Code of Good Practice on HIV/AIDS which is linked to the Employment Equity Act (EEA) provide useful information on the content of HIV workplace policies.

Many large employers have adopted workplace policies to mitigate the impact of the HIV epidemic on their business. Some of them have been at the forefront in providing HIV prevention, care and treatment services since 2002 at no cost to low income earning employees. However, despite these positive developments, the AIDS Law Project continues to receive many complaints regarding unfair dismissals, unfair discrimination, and the mismanagement of HIV-related cases in the workplace, in small, medium and large enterprises.

• In our experience, it appears that the implementation of HIV workplace policies is often patchy, with large companies adopting a policy at a national office level, and failing to ensure that information on the content of the policy (or even its existence) is disseminated at branch or department level
• While some companies offer free workplace prevention, care and treatment programmes, the historical fear of breaches of confidentiality and dismissal amongst employees has been a significant barrier to the up-take of these services within the workplace
• There is also a tendency among some companies and government departments to limit education and awareness activities to an annual World AIDS Day event and/or the distribution of pamphlets. This means that a significant opportunity for real education on HIV prevention, testing, treatment, and the reduction of stigma is being missed
• A survey of workplace policies conducted by the South African Business Council on HIV/AIDS (SABCOHA) in 2004 showed that while many large employers in the private sector have active HIV workplace policies, very few small and medium enterprises have adopted or implemented workplace policies at all. This is problematic as the majority of the unfair dismissal and discrimination cases which the AIDS Law Project has dealt with in the past two years involve small companies and individual employers (generally employers of domestic workers)
• Many small employers do not appear to recognize the need for managing HIV in the workplace. Discrimination against employees living with HIV is often motivated by ignorance of HIV transmission and the perception that the employee is a threat
• In situations where employees are poorly paid, non-unionised, have low job security and minimal formal education, employers do flout the law leaving the employee without recourse and/or even access to the justice system
• For many employees in small workplaces, where about half earn less than R 2 500 per month, HIV-related stigma and discrimination is a reality. This prevents many employees from disclosing their status and/or accessing legal protections and prevention, care and treatment services that may be available
• The proper implementation of HIV workplace policies can do a lot to decrease stigma, create an environment which encourages disclosure, encourage testing, and assist employees to access proper medical treatment
• However, many companies and organisations have not voluntarily adopted and implemented HIV policies for a number of reasons relating to perceived costs, lack of expertise or disinterest

• Equal access to care and treatment, including antiretroviral treatment, for all population groups including men, women and children, as well as prisoners, migrant workers and refugees
• Right to health, including available, accessible, acceptable and quality health services for all people living with HIV and AIDS
• Prevention of Mother-to-child Treatment for all HIV-positive mothers
• Post-exposure prophylaxis for victims of rape and other ways of exposure
• Gender equality, drawing attention to the gender-specific impact that violence has on spreading HIV disease
• Rights of children to access social services and protection
• Rights of migrant populations and refugees, including those who have been trafficked, who face particular risks of violence and HIV infection
• Physical integrity and security for people living with HIV and AIDS
• Rights of offenders to: health education; protection from sexual violence and risk of HIV infection; antiretroviral treatment when indicated; and protection from ill-treatment and discrimination
• Protection of vulnerable people at risk of acquiring HIV because of discrimination or as a result of violence including sexual violence
• Rights of HIV-positive people in the workplace
• Protection of HIV and AIDS activists and educators who are under threat by governments or individuals because of their work

1.   Fulfil the international commitment to the right to health
2.   Remove funding conditions that inhibit the prevention of HIV and AIDS
3.   Ensure equal access to treatment
4.   Ensure access to information
5.   Guarantee sexual and reproductive rights
6.   Safeguard women's rights and stop violence against women
7.   Ensure participation of people living with HIV and AIDS
8.   Share equally the benefits of scientific progress
9.   Affirm the right to privacy and confidentiality
10.   Ensure monitoring and evaluation for human rights and evidence-based solutions

AIDSbuzz would like to thank the Education & Training Unit (ETU) who kindly agreed to let us use their material on rights and HIV, which has been adapted for this section. For more information about ETU go to www.etu.org.za or contact them at edutrain@iafrica.com or 011 648 9430.