Code of Good Practice on Key Aspects of HIV/AIDS and Employment 

Download a PDF booklet on the Code of Good Practice on Key Aspects of HIV/AIDS and Employment

Up for discussion:

■ Key aspects of HIV/AIDS and employment

■ Role of mediation in achieving compliance with the HIV/AIDS code

■ Creation of a HIV/AIDS work policy

■ Employer duties and obligations

■ FAQ: HIV/AIDS and employment

Code of Good Practice on Key Aspects of HIV/AIDS and Employment 

The Code of Good Practice on Key Aspects of HIV/AIDS and Employment published in 2000 by the South African government. It provides guidelines for employers, trade unions, and employees on how to create a non-discriminatory workplace for people living with HIV/AIDS. The Code also outlines strategies for managing the impact of HIV/AIDS on the workplace, including preventing the spread of the virus, providing support to affected individuals, and minimising the associated costs. The Code cites relevant legislation, including the Employment Equity Act and the Labour Relations Act, and emphasises the need for ongoing awareness, education, and training on HIV/AIDS in the workplace.

Potential areas for mediation in the workplace HIV/AIDS code

This Code of Good Practice emphasises the importance of open communication, non-discrimination, and cooperation in addressing HIV/AIDS in the workplace. The Code identifies various areas where conflict could arise between employers and employees, and where mediation can play a crucial role in achieving the goals outlined.

Here are some specific areas where mediation could be valuable in resolving potential disputes and upholding the principles of the Code:

• Discrimination and stigmatisation: The Code explicitly prohibits unfair discrimination based on HIV status across all aspects of employment. Mediation could be used to address situations where employees feel they are being discriminated against or stigmatised due to their HIV status. Examples include:
  • Denial of promotions or training opportunities.
  • Unfair allocation of work assignments.
  • Exclusion from employee benefits or social activities.
• HIV testing and confidentiality: The Code outlines strict guidelines regarding HIV testing, emphasising that testing cannot be a requirement for employment. Mediation could be helpful in instances where:
  • An employee feels pressured to take an HIV test.
  • Confidentiality regarding an employee’s HIV status is breached.
  • Disputes arise regarding permissible testing circumstances like occupational exposure.
• Disclosure and workplace support: While employees have no legal obligation to disclose their HIV status, the Code encourages openness and provides guidelines for managing disclosure. Mediation can facilitate communication and understanding between employers and employees to:
  • Create a supportive environment for employees who choose to disclose.
  • Address concerns and anxieties from co-workers.
  • Develop strategies for accommodating the needs of employees with HIV/AIDS.
• Safety in the workplace: The Code outlines the responsibility of employers to provide a safe working environment and minimise the risk of occupational exposure to HIV. Mediation could be used in cases where:
  • Employees have concerns about workplace safety protocols related to HIV.
  • Disputes arise regarding the management of occupational accidents and compensation claims.
• Employee benefits and dismissal: The Code states that employees with HIV/AIDS should be treated the same as employees with other life-threatening illnesses in terms of benefits and dismissal procedures. Mediation can be a tool to:
  • Resolve conflicts regarding access to employee benefits, sick leave, and medical schemes.
  • Ensure fair and transparent incapacity and dismissal proceedings, protecting the employee’s right to confidentiality.
• Grievance procedures: The Code emphasises the importance of integrating HIV/AIDS-related concerns into existing grievance procedures. Mediation can be incorporated into these procedures to provide a neutral platform for:
  • Resolving complaints related to HIV/AIDS discrimination or policy violations.
  • Facilitating dialogue and understanding between parties.
  • Reaching mutually agreeable solutions.

Benefits of mediation

• Confidentiality: Mediation offers a private and confidential setting to discuss sensitive issues related to HIV/AIDS, which can be particularly important given the stigma often associated with the disease.
• Neutrality: A mediator acts as a neutral third party, facilitating communication and helping parties reach a mutually acceptable solution.
• Collaboration: Mediation encourages collaboration and problem-solving, fostering a more positive and supportive work environment.

By promoting dialogue and understanding, mediation can help create a workplace environment that adheres to the principles of the Code and supports the rights and well-being of all employees, regardless of their HIV status.

The role of mediation in achieving compliance with the HIV/AIDS code

Mediation can play a significant role in ensuring compliance with the Code of Good Practice on Key Aspects of HIV/AIDS and Employment. The Code’s principles, as detailed in Section 3, emphasise equality, non-discrimination, and a supportive work environment for those with HIV/AIDS. Mediation provides a framework to address conflicts and disagreements in a way that aligns with these core values.

Here’s how mediation can be specifically applied:

• Promoting open dialogue and understanding: Mediation encourages open communication between employers and employees, which is essential for addressing sensitive issues related to HIV/AIDS. It allows parties to express their concerns, perspectives, and needs in a safe and structured environment.
• Addressing potential discrimination: Section 6 of the Code outlines various areas where discrimination might occur, such as recruitment, benefits, and training. Mediation can be used to resolve disputes arising from perceived or actual discriminatory practices. For example, if an employee believes they were denied a promotion due to their HIV status, mediation can provide a platform to explore the situation and find solutions that ensure fair treatment.
• Managing confidentiality and disclosure: The Code emphasises the right to privacy regarding HIV status and provides guidelines on managing disclosure. Mediation can help navigate complex situations related to confidentiality. For instance, if an employee’s HIV status is inadvertently revealed, mediation can help address the breach, mitigate potential harm, and reaffirm the importance of confidentiality.
• Resolving conflicts regarding workplace safety: The Code mandates employers to provide a safe work environment and minimise occupational exposure to HIV. Mediation can be used to resolve conflicts or disagreements regarding safety protocols, the management of occupational accidents, or compensation claims.
• Facilitating agreement on employee benefits and dismissal: The Code stresses that employees with HIV/AIDS should have equitable access to benefits and fair dismissal procedures. Mediation can assist in reaching agreements on issues like sick leave, medical scheme coverage, and the application of incapacity procedures in a way that complies with the Code.
• Supporting the implementation of grievance procedures: Section 12 of the Code advocates integrating HIV/AIDS-related concerns into existing grievance procedures. Mediation can be a valuable component of these procedures, providing a neutral and confidential space to address complaints and find resolutions.
• Fostering a collaborative workplace culture: By encouraging communication, understanding, and problem-solving, mediation contributes to a more collaborative and supportive work environment. This aligns with the Code’s aim of promoting acceptance and openness around HIV/AIDS.

In essence, mediation can act as a bridge between the legal framework outlined in the Code and its practical application in the workplace. By offering a structured process for dialogue, conflict resolution, and agreement-building, mediation can help employers and employees navigate the complexities of HIV/AIDS in the workplace in a way that promotes compliance, fairness, and respect.

The Code primarily focus on outlining a Code of Good Practice for employers and trade unions to follow regarding HIV/AIDS in the workplace, detailing the obligations employers have to their employees in this regard.

Employer duties and obligations

• Non-discrimination: Employers are obligated to ensure individuals with HIV are not discriminated against. This includes avoiding unfair discrimination in recruitment, job assignments, training, benefits, dismissal procedures, and any other employment policy or practice. The Code specifically states that in legal proceedings regarding discrimination, the employer carries the burden of proving that any differentiation was fair.
• HIV testing: Employers are prohibited from requiring employees or job applicants to undergo HIV testing as a condition of employment. Limited exceptions exist, but they require approval from the Labour Court or must adhere to strict conditions such as being initiated by the employee, conducted within a healthcare setting, and accompanied by informed consent and pre- and post-test counselling.
• Confidentiality: Employers have a duty to protect the confidentiality of an employee’s HIV status. Disclosure of this information to others without the employee’s express written consent is a violation of this obligation.
• Safe workplace: Employers are legally obligated to provide a safe working environment and minimise the risk of occupational exposure to HIV. This includes providing appropriate training on universal infection control measures, supplying protective equipment, and establishing procedures for handling occupational accidents, including access to post-exposure prophylaxis.
• Compensation for occupational exposure: Employers must assist employees who have been occupationally exposed to HIV in filing for compensation. This includes providing information about the process and helping gather necessary evidence.
• Employee benefits: Employees with HIV/AIDS must have equal access to employee benefits and should be treated like any other employee with a life-threatening illness. Employers must ensure that any medical schemes offered as part of employee benefits do not discriminate based on HIV status.
• Dismissal: Dismissing an employee solely based on their HIV/AIDS status is illegal. If an employee becomes too ill to perform their job, employers must follow fair and legal incapacity procedures before termination, ensuring the employee’s right to confidentiality is protected.
• Grievance procedures: Employers must integrate concerns related to HIV/AIDS into existing grievance procedures. These procedures should be clearly communicated to employees, and measures should be in place to ensure confidentiality during the process.
• HIV/AIDS policy and programs: Every workplace is encouraged to develop a comprehensive HIV/AIDS policy in consultation with stakeholders. This policy should outline the organisation’s stance on HIV/AIDS, details on employment policies, standards of behaviour, grievance procedures, and resources available to employees. Employers should also work towards implementing programs focused on prevention, care and support, and impact management. This can include awareness campaigns, voluntary testing, education and training, condom distribution, promoting health-seeking behaviour, and establishing wellness programs.

These points outline the key duties and obligations employers have to their employees in relation to HIV/AIDS in the workplace. The Code emphasise that employers must comply with all relevant South African legislation, including the Employment Equity Act, Labour Relations Act, Occupational Health and Safety Act, and others.

FAQ: HIV/AIDS and employment in South Africa

1. Can an employer in South Africa require me to take an HIV test as a condition of employment?

No. The Employment Equity Act prohibits employers from requiring job applicants or employees to undergo HIV testing as a condition of employment. HIV testing can only be conducted if authorised by the Labour Court.

2. Under what circumstances can an employer legally conduct HIV testing in the workplace?

An employer may only conduct HIV testing after obtaining authorisation from the Labour Court. This might be permitted in specific cases such as:

• Assessing the risk of HIV transmission in a particular job.
• Investigating a workplace accident where there is a risk of exposure to blood or bodily fluids.

However, even in these cases, testing must adhere to strict confidentiality protocols and the Department of Health’s National Policy on Testing for HIV.

3. Am I obligated to disclose my HIV status to my employer?

No. South African law recognises your right to privacy regarding your HIV status. You are not legally obligated to disclose this information to your employer or colleagues.

4. What happens if I choose to disclose my HIV status at work?

If you voluntarily disclose your HIV status, your employer is legally bound to keep this information confidential. They cannot share this information with others without your explicit written consent.

5. Can I be dismissed from my job because I have HIV/AIDS?

No. The Labour Relations Act explicitly protects employees with HIV/AIDS from unfair dismissal based solely on their health status. Dismissal is only permissible if your illness prevents you from performing your job and all fair procedures outlined in the Code of Good Practice on Dismissal have been followed.

6. What measures should employers take to ensure a safe working environment regarding HIV/AIDS?

Employers are obligated to provide a safe and healthy working environment for all employees. This includes:

• Implementing universal infection control measures to minimise the risk of HIV transmission, particularly in healthcare settings.
• Providing appropriate training and resources for employees on HIV/AIDS prevention and management.
• Establishing clear procedures for managing occupational exposure to HIV, including access to post-exposure prophylaxis.

7. What are some key elements of an effective workplace HIV/AIDS policy?

A comprehensive workplace HIV/AIDS policy should address:

• Non-discrimination and protection against stigmatisation of employees with HIV/AIDS.
• Guidelines for HIV testing, confidentiality, and disclosure.
• Access to employee benefits for those affected by HIV/AIDS.
• Procedures for managing HIV-related grievances and complaints.
• Strategies for HIV/AIDS prevention, care, and support within the workplace.

8. What resources are available to employees in South Africa who are affected by HIV/AIDS?

Employees affected by HIV/AIDS have the right to:

• Access employee benefits without discrimination.
• Apply for compensation if they contract HIV through occupational exposure.
• Utilise grievance procedures to address any unfair treatment related to their HIV status.
• Seek support from trade unions, non-governmental organisations, and government initiatives focused on HIV/AIDS.

Compiled by Eugene Opperman (B.Proc. LLB.) (LSSA L.E.A.D., ADR Network, FAMAC, NABFAM), a legal practitioner and accredited mediator.