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, people with HIV could eventually start to become ill and this will affect their capacity to perform their work. 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 if an employee is unable to do their job properly because of their illness, then the employer will eventually be able to dismiss them.

The LRA sets out clear procedures for employers and employees when dealing with dismissals for incapacity. The Code on HIV states “Where a worker has become too ill to perform his or her current work, an employer is obliged to explore alternatives, including reasonable accommodation and redeployment”. It is unlawful for an employer to dismiss an employee simply because he/she suspects that the employee may have AIDS, but cannot show any evidence of incapacity.