Voluntary testing of an employee's HIV Status - court gives go ahead

Voluntary testing of an employee's HIV Status - court gives go ahead

By Perrott Van Niekerk Woodhouse Matyolo Inc.

Q: WHEN IS A LABOUR COURT ORDER REQUIRED IF AN EMPLOYER WISHES TO TEST ITS EMPLOYEES FOR THEIR HIV STATUS?

# Irvin & Johnson Ltd. v Trawler and Line Fishing Union & Others (Labour Court)

This judgment deals with the vexed question of whether section 7(2) of the Employment Equity Act, 55 of 1998, requires an employer to obtain permission from the Labour Court before engaging in the voluntary and anonymous testing of its employees for their HIV status.

Section 7(2) reads as follows:

"Testing of an employee to determine that employee's HIV status is prohibited unless such testing is determined to be justifiable by the Labour Court in terms of section 50(4) of this Act."

A literal interpretation of this section obviously requires a Labour Court order before any employee can be tested for his or her HIV status, whether the testing is voluntary or compulsory and irrespective of whether the test result can be linked to a specific employee. The definition of "medical testing" in the Act includes any test, question, enquiry or other means designed to ascertain whether an employee has any medical condition.

In the case of Joy Mining Machinery v NUMSA & Others (2002) 23 ILJ 391 (LC), the Labour Court appeared to imply that it was necessary for an employer to obtain a Labour Court order before implementing any testing programme, even if that testing was both voluntary and anonymous. In the present case, the Judge disagreed with that view.

The purpose of section 7, said the Court, was to prohibit employers from unfairly discriminating against employees on the basis that the employee suffered from some or other medical condition. One of the ways of reducing the likelihood of such discrimination was to limit the circumstances in which an employer may ascertain the employee's medical condition through testing.

IF TESTING IS ANONYMOUS, I.E. IT DOES NOT HAVE AS ITS PURPOSE THE ABILITY OF THE EMPLOYER TO ASCERTAIN THE HIV STATUS OF ANY IDENTIFIABLE EMPLOYEES, THE COURT WAS OF THE VIEW THAT IT WAS NOT NECESSARY FOR IT TO SANCTION THAT TESTING.

The Court went on to consider whether section 7(2) applied in circumstances where the employer wished to ascertain the HIV status of an identifiable employee by means of voluntary testing. The Court noted that it was one thing to protect employees against compulsory testing, but quite another to place obstacles in the way of voluntary testing.

The Court held that a purposive approach to section 7 of the Employment Equity Act had the consequence that the legislature did not intend section 7 to apply to voluntary testing. Whether the initiative for testing comes from the employer or the employee is of no relevance. What matters is that the employee be entitled to decide whether he or she wishes to be tested, and that no disadvantage attaches to any employee who does not submit to a test.

In summary, an employer may test an employee for his or her HIV status without a Labour Court order provided that the test is either anonymous or truly voluntary, in the sense that the employee gives his or her informed consent to the test and is not subject to any prejudice for refusing to undertake the test.

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The approach adopted by the Company towards HIV Testing

Postscript by Gary Watkins

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Of particular interest to readers is the extensive measures this company had already implemented to address AIDS /HIV in the workplace even prior to approaching the Labour Court for consent to conduct voluntary anonymous AIDS / HIV testing. These measures could well form a checklist for employers wishing to address AIDS / HIV:

In addition, the Company had:

>> Drafted and implemented an AIDS policy

>> Established HIV/AIDS committees to monitor the implementation of the policy

>> Arranged for the supply of condoms to its employees from dispensers located at the workplace

>> Offered counselling to employees living with HIV/AIDS

>> Organised various presentations and concerts of an educational nature

>> Had an equity committee, which has fully endorsed the applicant's HIV/AIDS programmes

The Company had already instituted various HIV/AIDS education and awareness programmes, the objectives of which were to:

>> Educate employees about HIV/AIDS; to offer psychological support to employees

>> Dispel myths and unfounded fears about HIV/AIDS

>> Encourage employees to go for voluntary testing; and

>> Help employees to make necessary lifestyle changes

The reasons for now approaching the Labour Court for consent to conduct AIDS / HIV testing was that the company believed that it required information on HIV prevalence in its workforce to:

>> Assess the potential impact of HIV/AIDS on its workforce

>> Enable the company to engage in appropriate manpower planning so as to minimise the impact of HIV/AIDS mortalities and HIV/AIDS-related conditions on its operation

>> Enable it to put in place adequate support structures to cater for the needs of employees living with HIV/AIDS

>> Facilitate the effective implementation of proactive steps to prevent employees from becoming infected with HIV/AIDS.

That Company had been assisted in formulating its HIV/AIDS education and awareness programmes by an enterprise called Isibindi, a private non-governmental organisation, which provides HIV/AIDS support programmes

The Company stated that it is dedicated to applying the principle of non-discrimination against AIDS sufferers. It permits HIV-positive employees to perform their normal duties for as long as they are able to do so.

HIV-positive employees who disclose their status to the Connections/Isibindi counsellors are advised of the various non-governmental organisations and clinics that provide services to HIV sufferers, and of the fact that they may, if they wish to do so, consult the applicant's doctor and enroll in the applicant's wellness programme. The latter programme includes weight monitoring, the provision of vitamins, the treatment of opportunistic diseases and counselling.

In approaching the Labour Court it sought consent to arrange for the voluntary and anonymous testing of its employees, on an ongoing basis, to allow employees to determine their HIV status at any time and to enable the applicant to assess its manpower planning needs on a continuing basis.

The conditions of the proposed testing (being the conditions which the Company intended should be incorporated in any order granted by the Labour Court under section 50(4) of the Act) were that the:

>> Elisa and Abbott tests are used. (The latter is a rapid test using a small blood sample obtained via a pinprick. The former test involves drawing samples of blood for testing in a pathology laboratory.)

>> Tests will be conducted voluntarily and with the consent of the individual employees

>> Tests are anonymous, in that samples taken from the individual employees will be identifiable only by a number, which will enable the individual employee concerned to enquire about the test results without fear of being identified

>> Age and job category of the individual employees being tested will be recorded for purposes of generating statistics of relevance to the applicant in the implementation of its HIV/AIDS policy

>> Tests will be conducted on an ongoing basis to enable the applicant to monitor the impact of HIV/AIDS on its workforce and to take appropriate steps to minimise its impact on the applicant's employees

>> Tests will be accompanied by appropriate pre-test and post-test counselling.

>> The tests will be conducted by an independent professional testing agency.

>> The only information that the testing agency will pass onto the applicant is the percentage and number of employees in the various age and job categories who test positive

>> The employee will not be discriminated against on the basis of his or her HIV status

>> Prejudicial inference will not be drawn from the refusal of an employee to submit to testing or from an employee's consent to testing

>> Employee who volunteer for HIV testing will be required to sign a form confirming that he or she has consented to the test and indemnifying the independent agency, the pathologists and the applicant against any claim arising from the test.

The employee will complete this form with the assistance of an Isibindi counsellor. The employee's name would appear on the form and would thus be known to the counsellor. The employee is informed of this fact and may decline to proceed with the testing. The applicant will have no access to these forms, which are retained by the independent agency that the:

>> Form is completed as part of the pre-test counselling. Once the pre-test counselling has been completed, the Isibindi counsellor administers the Abbott test, the result of which is known within about 20 minutes.

If the test is negative the employee will be counselled on lifestyle habits so as to remain uninfected. Should the test be positive, the employee will be counselled and the Elisa test will be used to confirm the initial result.

>> Only a number identifies sample used in the Elisa testing. The number is contained in a sealed envelope. The employee selects the number by drawing a sealed envelope from a container holding a number of sealed envelopes. Each sealed envelope contains three labels bearing the identical number.

The one label is affixed to the sample, another is affixed to a blank sheet retained for control purposes, and the employee keeps the third. The employee can obtain the result of his or her test from the Isibindi counsellor after two days by presenting the number. No name is required.

>> Only information that the applicant will obtain concerns the age and job category of the various employees who have been tested. This information will be used for statistical purposes.

The measures adopted by this Company to address AIDS / HIV in the workplace are significant, and the clarity provided by the Labour Court will allow other companies to use the guidelines set out above as a model for their AIDS / HIV intervention measures.