The Rights of HIV-Positive Employees | LAW FOR ALL Online

When it comes to HIV awareness, South Africa has made extraordinary progress in a relatively short amount of time. Year after year, the stigma around HIV and those living with the disease seems to disappear more and more. However, there is still room for improvement in many sectors.

One of the critical areas in which HIV awareness and acceptance needs to expand is in the workplace. Discrimination against HIV-positive employees still seems to be a problem in South Africa, considering a third of HIV-positive employees reportedly feel discriminated against.

Despite the increasing knowledge and research around HIV that’s readily available, there are still widespread misconceptions and ill-informed assumptions about HIV-positive people and whether or not they are competent employees.

Of course, it comes as no surprise that many are hesitant to disclose their status to colleagues and employers in fear of being discriminated against.

How the Law Protects HIV-Positive Employees

HIV is specifically and directly addressed in the Employment Equity Act: Section 6(1) of the Act provides that “no person may unfairly discriminate against an employee, or an applicant for employment, in any employment policy or practice, based on his or her HIV status”. Furthermore, the Labour Relations Act protects the employment of employees living with HIV. It provides that employees with HIV/Aids may not be dismissed because of their status. Section 14 of the Constitution guarantees everyone the right to privacy, including people infected with HIV/Aids. What’s more, the Constitution requires employers to promote a non-discriminatory environment that accords with an open, free and transparent society.

Furthermore, it highlights that not only should HIV-positive people not be discriminated against in the workplace, but there should also be training and explicit policies on HIV in place. A lack of awareness and training can perpetuate ignorance and encourage discrimination, so taking the time to facilitate awareness talks or workshops is very important.

The Rights of HIV-positive Employees

• Employees are not legally obligated to disclose their status to an employer or colleagues.
• Should an HIV-positive employee decide to share their status with a superior or manager, they cannot share it with anyone else without explicit consent.
• If an employer (or potential employer) requests an employee to take an HIV test, they have the right to refuse.
• If an employee’s status is known in the workplace, the employer and co-workers cannot victimise them.
• An employer is not allowed to demote or dismiss someone based on their HIV status. The only time an employer may dismiss someone is when they become too ill to do their job. Even then, that person may only be dismissed after the employer has followed “rigorous procedures” and tried to find alternative employment for the employee in question.
• An employer is also not allowed to hold back a promotion based on an employee’s status.
• An HIV-positive staff member is entitled to the same benefits as any employee without HIV.

Advantages of Disclosing HIV status at Work

An employer must take the necessary steps and implement processes that educate employees about HIV and make HIV-positive workers feel accepted and valued.

Again, while it isn’t legally required for an employee to disclose their status, AidsMap.com says there are many benefits to doing so. The advantages include:

• Being able to request time off for clinic appointments, etc.
• Having discussions about flexible working arrangements.
• Taking medication at work without fear of being judged.
• Accounting for temporary poor work performance.
• Being able to justify periods of sickness.

Raising HIV Awareness in the Workplace

An HIV-positive employee will probably only feel comfortable disclosing their status if the working environment is safe to do so and the other employees are educated about HIV. Therefore, companies must implement the following:

• Hold regular HIV/AIDS awareness programmes.
• Create an environment that is conducive to openness, disclosure and acceptance amongst all staff.
• Try to establish a wellness programme for employees affected by HIV/AIDS.
• Provide access to counselling and other forms of social support for people affected by HIV/AIDS.
• Maximise the performance of affected employees through reasonable accommodation, such as investigations into alternative sick leave allocation.
• Develop strategies to address the direct and indirect costs associated with HIV/AIDS in the workplace.
• Regularly monitor, evaluate and review the programme.

We’ve Got Your Back!

Companies and employers need to understand that an inclusive and progressive working environment is necessary to help all employees feel empowered and valued. If you are HIV positive and feel discriminated against in the workplace, speak to legal advisors to get legal advice and guidance. Take a look at our affordable LAW FOR ALL policies.

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