South Africa has one of the highest HIV/AIDS infection rates in the world and most of us are affected by this longstanding pandemic, either in a direct manner or indirectly. Despite widespread awareness and great medical advancements in this field, those infected with HIV/AIDS still face discrimination due to their HIV/AIDS status. It is important to highlight that those infected with HIV/AIDS have the same rights as everyone else, particularly in the context of the workplace where they are highly prone to discrimination due to their HIV/AIDS status. This article will address some of the frequently asked questions on HIV/AIDS in the workplace.

What laws protect against HIV/AIDS discrimination in the workplace and does it only apply to employees?

As the highest law in South Africa, section 9 of the Constitution provides that everyone has the right to equality which includes to be treated equally and to receive equal protection of the law. The right to equality also includes not to be discriminated against, directly or indirectly, based on race, gender, pregnancy, marital status, ethnic or social origin, age, disability and so on.

Although the Constitution is the basis for protection against unfair discrimination, it does not specifically list a person’s HIV/AIDS status as one of the prohibited grounds of discrimination. However, the Employment Equity Act provides for the necessary protection and specifically states that no person may unfairly discriminate against an employee on the basis of his/her HIV/AIDS status. The Employment Equity Act further explains that this protection from discrimination is also extends to job applicants and is not just limited to employees.

The Department of Employment and Labour published the Code of Good Practice on HIV/AIDS and the world of work (“Code of Good Practice”) to address key aspects of HIV/AIDS in the workplace in support of the Employment Equity Act. The Code of Good Practice not only applies to employees, but also to interns/apprentices, volunteers, job applicants and laid-off or suspended employees.

Both the Employment Equity Act and the Code of Good Practice have been referred to in court cases relating to HIV/AIDS in the workplace. One of the leading cases is that of Hoffman v South African Airways (CCT17/00) (2000) ZACC 17 where the Constitutional Court made it clear that employers may not discriminate against employees, as well as prospective employees, on the basis of their HIV/AIDS status.

In the Hoffman-case, the employer had refused to employ Hoffman because he was HIV positive. The Constitutional Court found that the employer’s refusal to hire Hoffman infringed on his right to human dignity and constituted unfair discrimination.

Do you have to inform your employer about your HIV status?

No, the Code of Good Practice highlights the fact that everyone, including HIV/AIDS positive people, has the right to privacy. This means that as a general rule, employees and job applicants are not required to disclose their HIV/AIDS status to their employer or even their co-workers.

If your employer or co-worker knows about your HIV status, can they disclose it to someone else?

If an employee has voluntarily disclosed his/her HIV/AIDS status, the employer and/or co-workers may not disclose this information without the express written consent of the employee concerned. An employee’s personal information relating to his/her HIV/AIDS status must be bound by rules of confidentiality.

If the HIV/AIDS status of an employee is known, the employer and co-workers of that employee may not victimise the employee under any circumstances.

Can you be dismissed based on your HIV/AIDS status?

No, an employee may not be dismissed, demoted or passed up for a promotion based on their HIV/AIDS status. The only time an employer may dismiss someone is when they become too ill to do their job. Even then, the employee may only be dismissed after the employer has followed rigorous procedures in respect of incapacity due to ill-health and attempted to make reasonable accommodations, for example, alternative employment for the employee in question, adjustment of working hours and so on.

If an employee feels that s/he has been unfairly dismissed based on his/her HIV/AIDS status, s/he can refer to the Commission of Conciliation, Mediation and Arbitration (“CCMA”) within 30 days of the unfair dismissal.

Can your employer force you to get tested for HIV/AIDS?

No, the Employment Equity Act provides that employees must not be required to undergo HIV/AIDS testing, unless the employees provided their consent or if the testing has been justified by the Labour Court. This means that employees may refuse an employer’s request to be subjected to HIV/AIDS testing. If the testing was legally conducted, the results of the tests must be kept confidential and must not influence access to jobs, advancement or job security.

What can you do if you feel you are being unfairly discriminated against?

If an employee feels that his/her rights have been violated on account of your HIV/AIDS status, s/he may lodge a grievance through the employer’s internal grievance procedure to address the unfair discrimination. If all internal dispute mechanisms with the employer have been followed and the dispute remains unresolved, the matter may be referred to the CCMA within six months after the alleged unfair discrimination occurred.

In light of the above, employees are protected against unfair discrimination in the workplace based on their HIV/AIDS status, as well as protection against disclosure of their HIV/AIDS status. It is unfortunate that discrimination against HIV/AIDS positive employees still takes place in the workplace, but it is important to be armed with the fact that the law protects and solidly stands on the side of those who are vulnerable to unfair discrimination from their employer and co-workers. Knowing your rights can give you an increased sense of power in circumstances where you are likely to feel vulnerable.