Employers, supervisors or colleagues often discriminate against employees living with HIV or AIDS or TB. The following laws give people rights at work

The Constitution

The Constitution gives all employees the right to be treated fairly at work, including the right to fair labour practices and the right to equal treatment and non- discrimination.

The Labour Relations Act (LRA)

The LRA covers all employees and employers, and treats everyone the same. This means that domestic workers now have the same rights as factory workers.

The only employees who are not covered by the LRA are people working for the South African National Defence Force (SANDF) and the State Security Agency. But these employees are protected by the Constitution and therefore have the right to fair labour practices and equality.

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 and so on. Discrimination is ‘automatically unfair’ if it violates any of the basic rights of employees, such as discrimination on grounds of a person’s disability. (See: Automatically Unfair Dismissals)

Case Study: Gary Shane Allpassv Mooikloof Estates (PTY) LTD (2011)

Mr Allpass was employed by Mooikloof Estates as a horse riding instructor and stable manager. At the time of his recruitment, he had been living with HIV for almost 20 years. Prior to being hired, Mr Allpass underwent an interview, during which he informed the respondent that he was “in good health”.

Shortly after he was hired, he — along with other employees — was asked to complete a form requiring him to disclose whether he was taking any “chronic medication.”

Mr Allpass complied and disclosed that he was taking, among other things, daily medication to manage his HIV condition.

Upon learning of his HIV-positive status, his employer immediately terminated his employment on the grounds that he had fraudulently misrepresented his condition and that he was in fact “severely ill”.

The court decided that Mr Allpass had been discriminated against and unfairly dismissed due to his HIV status. The court also considered that the dismissal violated the equality rights.

The Employment Equity Act (EEA)

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 also prohibits testing for HIV in the workplace unless this is authorised by the Labour Court. (See: Employment Equity Act)

An employer cannot:

• Force a person who is applying for a job to have an HIV test
• Automatically make an HIV test part of a medical examination
• Force someone who is already working for them to have an HIV test

The EEA doesn’t cover members of the South African National Defence Force, or the State Security Agency. But members of these organisations can still take their cases to any court with jurisdiction including the High Courts.

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 the person also has an open wound, there is a small chance of the helper becoming infected if the 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. (See: Occupational Health and Safety Act)

There are new regulations issued by the labour department 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)

COIDA gives employees the right to compensation if they are injured or become ill at work. If you get infected with HIV becauseof a workplace accident, you can claim for compensation. (See: Compensation Fund)

The Medical Schemes Act No 131 of 1998 and Regulations: Government Gazette 20556, 20 October 1999

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 stops medical schemes from discriminating against people living with HIV or AIDS. It states that all schemes must offer a minimum level of benefits, decided by the government, to employees with HIV or AIDS. The minimum levels of benefits include:

• They must diagnose and treat all opportunistic infections for HIV or AIDSS
• They must provide anti-retroviral treatment