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Labour Legislation Index

HIV/AIDS Technical Assistance Guidelines Version XX

Department of Labour





HIV/AIDS Technical Assistance Guidelines



Published  for the  Chief Directorate of Labour Relations


Department of Labour

Chief Directorate of Communication

Private Bag X117



South Africa



Internal editing, layout and  design  and  distribution

Media Production Unit

Chief Directorate of Communication




Formeset, Cape Town



ISBN No: 0-621-336566-4






This Technical Assistance Guidelines (TAG) document is intended to complement the  earlier adopted ‘Code of Good Practice on Key Aspects of HIV/AIDS and Employment’ of 2000  within the  framework  of the  policy options  indicated in the  ‘Employment Equity Act’ of 1998.  The TAG will equip employers and other  role players  with practical tools to eliminate unfair discrimination based on HIV in the  workplace.


One  of the  most  serious public  health problems facing South Africa is the  HIV/AIDS epidemic. It not only threatens the lives of individual employees and employers, but has  significant  impact on each and every workplace, the  effective functioning of the  labour  market and the  national economy as a whole.


The impact of HIV/AIDS in the  workplace is felt in many areas, for example the  loss of productivity,  increased cost  of employee benefits, high production costs  and lower workplace morale due to prolonged staff illness, increased absenteeism and mortality rates.  This, in turn, impacts negatively on the  economy of the  country  as it slows down economic growth with less economically active persons able to contribute to the  economy. The loss of an  employee requires  an  appropriate replacement to be selected and trained, which often  is at great cost.


In re-affirming  the  government’s commitment to intensify its comprehensive programme to fight HIV/AIDS in partnership with all sectors of society, my Department introduced specific provisions in the  Employment Equity Act (1998), which specifically prohibit unfair discrimination on the  grounds of an  employee’s HIV-status. The Act also prohibits testing  by employers without the  prior authorisation by the  Labour Court.  To assist parties  to understand and fulfil their obligations under the  Act, particularly in respect of HIV/AIDS, the  Code was developed, inter alia,  to provide strategies to reduce the  impact of the  epidemic by developing policies  and procedures to manage HIV/AIDS in the workplace.


To assist with the  practical implementation of the  Act and the  Code, we developed the  Technical Assistance Guidelines (TAG) on Key Aspects of HIV/AIDS and Employment. The TAG builds on the  Code to set out practical guidelines for employers, employees and trade unions on how to manage HIV/AIDS in the  workplace. It also  serves  as a guide to ensure that  individuals affected by HIV/AIDS are  not unfairly discriminated against in the  workplace. In essence, the  TAG is based on the  Department of Labour ’s broad goals in managing HIV/AIDS in the  workplace, inter alia,  promotion of equality  and openness around HIV/AIDS, creation of a balance between rights and responsibilities, and restoration of the  dignity of persons affected by HIV/AIDS.


In conclusion, I  wish to express  my sincere gratitude to the  Commission for Employment Equity for the  significant  role it played in the  development of the  TAG. I  also  take this opportunity to thank  the  Employment Equity Directorate for providing  support and technical assistance during the  development of the  TAG.


My special word of thanks  go  to the  International Labour Organisation (ILO) and United Nations Development Programme (UNDP) for their unwavering financial  and technical support.




Table of contents                       Pages Foreword                                                                                                                                                                iii Acronyms  and abbreviations                                                                                                        vi Glossary                                                                                                                                                                 vii Summary of the  contents                                                                                                                ix



Chapter 1


1.   Introduction                                                                        1


1.1     Background to the  Code                                                                                                       1


1.2     Background to the  TAG                                                                                                                             3


1.3     Impact of HIV/AIDS in the  workplace                                                                                          3




Chapter 2


2.   Key legal and policy components of the  Code                5


2.1     Eliminating unfair discrimination and  promoting a non-discriminatory workplace                     5


2.2     Testing, confidentiality and disclosure                                                                                     11


2.3     Promoting  a safe  working environment                                                                                      19


2.4     Compensation for occupational Infection  with HIV                                                                                                    24


2.5     Employee benefits                                                                                                                      27


2.6     Dismissals and grievances                                                                                                     32




Chapter 3


3.   Framework for managing HIV/AIDS in the  workplace         39


3.1     Principles underlying  a comprehensive response to HIV/AIDS                                                                         39


3.2     Managing HIV/AIDS in the  workplace                                                                                          40


3.3     Implementation guidelines                                                                                                         43


Appendix  A: HIV/AIDS/Epidemic  in perspective                                                                                   66


Basic facts  on HIV/AIDS                                                                                                                                                                       66


Key facts  on HIV/AIDS in the  workplace                                                                                               69


Global  and African review of HIV/AIDS statistics



South African HIV/AIDS epidemic




Impact of HIV on specific sectors




Appendix  B: Contact numbers of Department of Labour offices



Acronyms and abbreviations



AIDS                                                 Acquired Immune Deficiency Syndrome

ASOs                                             AIDS Service Organisations

CCMA                                    Commission for Conciliation Mediation and Arbitration COIDA                                   Compensation for Occupational Injuries and Diseases Act DOH                                       Department of Health

DOTS                                       Directly Observed Treatment Short-course

EAP                                        Employee Assistance Programme

EEA                                                  Employment Equity Act

GIPA                                             Greater involvement of people living with HIV/AIDS HIV                                                       Human Immunodeficiency Virus

ILO                                           International Labour Organisation KAP                                                   Knowledge, Attitudes and Practices LRA                                                     Labour Relations Act

M&E                                      Monitoring and Evaluation

NEDLAC                               National  Economic Development and Labour Council

NGO                                       Non Government Organisation OHS                                       Occupational Health and Safety PEP                                         Post-exposure prophylaxis

PLWA                                                Person living with HIV/AIDS PWA                                       Person with AIDS

PMTCT                                            Prevention  of Mother to Child Transmission SADC                                     Southern  African Development Community SANAC                                  South African National  AIDS Council

SANDF                                  South African National  Defence Force

STD                                                     Sexually Transmitted Disease STI                                                                Sexually Transmitted Infection TB                                                                 Tuberculosis

TMPs                                               Traditional Medical Practitioners

UNAIDS                                          Joint United Nations Programme on HIV/AIDS UNDP                                     United Nations Development Programme VCT                                                 Voluntary Counselling and Testing

WHO                                      World Health Organisation


AIDS                                               Acquired Immune Deficiency Syndrome - a syndrome that  results from infection  with HIV Antibodies                             Substances produced by cells in the  human body's  immune system  in response to foreign

substances that  have entered the  body



Asymptomatic                 Infected by a disease agent but exhibiting no medical symptoms



Care                                       Steps  taken to promote a person’s  well being through medical, psychosocial, spiritual and other  means


Confidentiality                       Right of every person, employee or job applicant to have their medical information, including HIV status,  kept private


Counselling                           Counselling is defined as a confidential dialogue between a client and a trained counsellor aimed at enabling the  client to cope with stress and take personal decisions related to HIV/AIDS. Counselling may  be provided by a professional or a lay counsellor.


ELISA test                               Enzyme Linked Immuno-Sorbent Assay - the  test used to identify the  presence or absence of HIV antibodies

Epidemic                          A disease, usually infectious, that  spreads quickly through a population Epidemiology                      The study of the  distribution and determinants of disease in human populations Evaluation                            An assessment of progress towards  and the  achievement of an  objective. Generally

carried out at a specific point,  or points in time



HIV testing                             Any form of testing  designed to identify the  HIV status  of a person, including blood tests, saliva tests or medical questionnaires


HIV                                          Human immunodeficiency virus - the  name of the  virus which weakens the  immune system  and leads to AIDS


Immune system                   A complex system  of cells and cell substances that  protects the  body from infection  and disease


Incidence of HIV                      The number of new cases of HIV in a given  time  period, often  expressed as a percentage of the  susceptible population


Indicator                            A direct  or indirect  measure of change



Monitoring                             Monitoring is an  ongoing assessment or measurement of a programme that  aims  to provide early indications of progress, or lack of progress in the  achievement of the programme’s objectives


Networks                              Individuals and organisations willing to assist one another or to collaborate to achieve common goals


Occupational exposure   Exposure to blood or other  body fluids, which may  be HIV infected, during the  course of carrying  out working duties


Opportunistic infections     Infections  that  occur because a person's immune system  is so weak  that  it cannot  fight

the  infections



Pandemic                            An epidemic occurring simultaneously in many countries



Partnerships                          Relationships that  are  built with other  organisations to support existing initiatives within the workplace and the  community


Policy                                    Written document that  aims  at setting  out an  organisation’s position  and practices on




Positive living                       A way of living with HIV or AIDS which enables people to cope with the  difficulties and challenges they might  face, and to live a long and fulfilling life


Prevalence of HIV                   The number of people with HIV at a point in time,  often  expressed as a percentage of the total population


Prevention  programme    A programme designed to prevent HIV transmission,  including components such  as awareness, education and training, condom distribution, treatment of sexually transmitted infections, occupational infection  control


Risk                                       Probability of a person acquiring HIV



Risk behaviour                  Individual, or group behaviour, that  increases the  risk of becoming infected with HIV



Risk environments             Environments  in which social,  economic or cultural factors  increase the  possibility of HIV




Risk assessments              Identify factors  that  may  make a particular workforce,  workplace or surrounding communities more vulnerable to infection  with HIV


Seroconversion                  The point at which the  immune system  produces antibodies and at which time  the  HIV

antibody test can register an  HIV infection



Support                                  Services  and assistance that  could be provided to help  a person deal with difficult situations  and challenges


Susceptibility                          Factors  determining the  rate  at which the  HIV epidemic is propagated at an  individual, group or societal level


Treatment                             Steps  taken to care for and manage an  illness



Unfair discrimination          An employee is treated differently due to their real or perceived HIV status,  in a way that impairs their fundamental dignity.  Discrimination is not unfair if it is based on the  inherent requirements of a job


Vulnerability                          External factors  that  place a person at risk of HIV infection. Vulnerability factors  include for example, age, gender and income level


Wellness programme       A programme designed to promote the  physical  and mental health as well as the well-being  of employees, including components such  as counselling, support groups, nutritional supplements, provision of treatment for opportunistic infections, provision of anti-retroviral therapy


Window period                 The incubation period between infection  and detection of HIV


Workplace programme    An intervention  to address a specific issue within the  workplace (for example, providing staff access to a voluntary HIV counselling and testing  programme).

Summary of the  contents



1. The HIV/AIDS epidemic is having  a significant  effect on all South African workplaces and the  economy.  As the epidemic primarily affects working age adults,  its impact will be seen primarily through an  increase in absenteeism and sick leave, faster  staff turn over due to early deaths, more employees placed on disability pensions, lower staff morale, greater pressure on employee benefit funds and possibly a change in markets and demands  for services.


2. In the  light of the  impact of HIV/AIDS on workplaces described above and the  high levels of discrimination faced by people affected by HIV or AIDS, the  Employment Equity Commission with the  Department of Labour, developed the  Code of Good Practice on Key Aspects of HIV/AIDS and Employment.


3. The Code of Good Practice on Key Aspects of HIV/AIDS and Employment is a code of good practice that  is attached to the  Employment Equity and Labour Relations Acts. It is essentially  a standard setting  out the  content and scope of an  appropriate response to HIV/AIDS in the  workplace.


4. The Technical Assistance Guideline (TAG) on the  Code of Good Practice on Key Aspects of HIV/AIDS and Employment (the Code) is an  implementation guideline issued  by the  Commission for Employment Equity and the Department of Labour. It is designed as an  accessible, user-friendly manual for employers, employees and trade unions on how to deal with HIV related discrimination and  to respond to the  impact of HIV/AIDS in the  workplace.


5. Chapter One  of the  TAG is an  introduction to the  TAG. It sets out the  objectives of the  Code and the  principles  it is based on and its application and scope; it details  the  purpose and objectives of the  TAG; and sets out the

context for the  Code by describing the  HIV/AIDS epidemic and its impact on the  workplace.



6. Chapter Two of the  TAG describes the  legal  and policy framework  underlying  the  Code. It assists employers, employees and trade unions to understand the  relevant law by setting  out the  provisions in the  Code, the Constitution  and other  laws. Important terms  are  defined. Key issues are  identified  including common problems and issues for various stakeholders. Finally, it sets out implementation guidelines, including checklists  and roles and responsibilities.


The chapter deals with the  following elements of the  Code:



6.1 The need to both  prohibit unfair discrimination based on HIV status  as well as promote a non-discriminatory work environment in which persons affected by HIV/AIDS are  able to participate fully without fear  of stigma or prejudice.


6.2 The importance of ensuring  that  HIV Testing takes  place in accordance with the  provisions in section 792 of the Employment Equity Act and that  it is accompanied by a guarantee of confidentiality. This section also  details the  importance of encouraging  openness  and disclosure and describes the  steps  that  can be taken to create an  environment in which Persons Living with HIV or AIDS (PLWAs) feel able to voluntarily disclose their HIV status.


6.3 How to promote a safe  working environment and the  steps  that  should  be taken to ensure that  employees who become occupationally infected with HIV be able to apply for compensation.


6.4 The need to ensure that  employee benefits are  provided in a relevant, sustainable,  non-discriminatory fashion.



6.5 The need to ensure that  employees are  protected from unfair dismissals,  steps  to be followed  in effecting a dismissal for incapacity and how to promote a confidential, accessible grievance procedure to deal with HIV related disputes.


7. Chapter Three describes how to manage HIV/AIDS in the  workplace. It provides practical guidelines relating  to each of the  provisions in the  Code. It identifies key issues and suggests implementation guidelines such  as check lists, best  practices and case studies.

This chapter details:



7.1 An introduction to managing HIV/AIDS in the  workplace including the  importance of mainstreaming HIV and gender programming.


7.2 The responsibilities of management when  responding to the  epidemic for example the  need to develop an

HIV/AIDS committee  and proactively ensure that  employee benefit funds are  sustainable.



7.3 How to determine the  impact of HIV/AIDS on a particular workplace and to use  this information to plan  for such implications.


7.4 Developing an  HIV/AIDS policy.



7.5 Developing a workplace HIV/AIDS prevention programme  including awareness activities,  voluntary counselling and testing,  education and training, condom promotion and distribution, management of STDs and infection control  measures.


7.6 Developing a workplace wellness programme  including creating a non-discriminatory work environment, medical management of staff, treating and preventing TB, positive living, counselling and support groups, using traditional  medical  practitioners, providing  family support programmes and reasonably accommodating infected employees.


7.7 Creating strategic partnerships to enhance the  greater involvement of PLWAs and other  organisations in the workplace programme.


7.8 Strategies for monitoring and evaluating workplace HIV/AIDS policies  and programmes.



Chapter Four is a set of three  appendices. Appendix  A sets out additional facts  on HIV/AIDS and the  impact it will have in the  workplace. Appendix  B is an  index to the  TAG and lists additional resources for stakeholders requiring further assistance with their policy or programme. Finally, Appendix  C contains a copy of the  Code.




1. Introduction



Chapter one sets out the  purpose behind the  development of the  Code on Key Aspects on HIV/AIDS and Employment (the Code) and the  Technical Assistance Guidelines (TAG). Furthermore, it outlines some basic facts  on HIV/AIDS and the  key contextual factors  relating  to the  pandemic and its impact in the  workplace.




Key points



The following key points are  made in this section:



The Code of Good Practice on Key Aspects of HIV/AIDS and Employment (the Code) is linked to the

Employment Equity and Labour Relations Acts.

The Code is based on principles  and legal  provisions contained within international law, the  Constitution,  labour legislation,  other  relevant acts and the  common law.

The Code has  two objectives: Firstly to provide guidelines on how to eliminate unfair discrimination based on HIV status  in the  workplace; and secondly, to provide guidance on the  management of HIV/AIDS in the workplace.

The TAG provides guidelines for employers, employees and trade unions in the  management of HIV/AIDS in the workplace.

HIV/AIDS is a serious public  health problem.

There is no risk of HIV transmission  in everyday social  contact.

The HIV/AIDS pandemic continues to have a significant  impact in the  workplace and has  serious implications for the  economy of South Africa. .

Approximately 4.7 million men, women and children  are  infected in South Africa.

Anybody who has  unprotected sex is at risk – regardless of race, religion or sexual  orientation.

HIV/AIDS affects morbidity,  mortality, absenteeism, staff morale, the  cost  of benefits, products and services  and investment.

To minimise  the  impact of HIV/AIDS, it is imperative that  every workplace in South Africa responds to the challenge of HIV/AIDS through prevention of further infections  and implementation of management strategies.




1.1  Background to the  Code



The Code of Good Practice on Key Aspects of HIV/AIDS and Employment is a code that  is linked to the  Employment Equity and Labour Relations Acts. It is essentially  a standard setting  out the  content and scope of an  appropriate response to HIV/AIDS in the  workplace.


1.1.1 Objectives of the  Code



The Code aims  to set out implementation guidelines for employers, employees and trade unions to ensure that individuals affected by HIV/AIDS are  not unfairly discriminated against in the  workplace. This includes provisions regarding:


(i)         Creating a non-discriminatory work environment;

(ii)        Dealing  with HIV testing,  confidentiality and  disclosure; (iii)       Providing equitable employee benefits;

(iv)      Dealing  with dismissals; and

(v)     Managing grievance procedures.



The Code also  aims  to provide guidelines for employers, employees and trade unions on how to manage HIV/AIDS

within the  workplace. This includes provisions regarding:

(i)         Creating a safe  working environment for all employers and employees;

(ii)        Developing procedures to manage occupational incidents and claims  for compensation; (iii)       Introducing measures to prevent the  spread of HIV;

(iv)      Developing strategies to assess and reduce the  impact of the  epidemic upon the  workplace; and

(v)     Supporting those individuals who are  infected or affected by HIV/AIDS so that  they may  continue to work productively for as long as possible.


1.1.2 Principles underlying the  Code



The Code is based on five key principles:



Equality and non-discrimination between individuals with HIV infection  and those without and between HIV/AIDS

and other  comparable  illnesses;

The creation of a supportive environment so that  employees with HIV or AIDS can continue working for as long as possible;

Protection of human rights;

Ensuring the  rights and needs of women are  addressed in all policies  and programmes; and

Consultation, inclusively and participation of all stakeholders in all policies  and programmes.



1.1.3 Legal background to the  Code



The principles  embodied in the  Code have been drawn  from both  national and international law as well as best practices in the  management of HIV/AIDS in the  workplace.


International law



The most  important of the  international codes  that  have been used to inform and develop the  Code are:



The SADC Code of Good Practice on HIV/AIDS and Employment (1997)

HIV/AIDS and Human Rights: International Guidelines (United Nations:  1998)

The ILO Code of Practice on HIV/AIDS and the  World of Work (2001)



South  African  law



The Code is based on principles  and provisions contained in:



The Constitution;

Labour legislation;

The common law; and

Related legislation.



1.1.4 Application and scope of the  Code



The Code is issued  in terms  of the  provisions of the  Employment Equity and the  Labour Relations Acts; and it should  be used as a standard against which the  actions of employers, employees and trade unions may  be measured in the management of HIV/AIDS in the  workplace.




Use of codes of good practice



Section  54 of the  Employment Equity Act provides that  the  Minister of Labour may  on the  advice of the  Commission for Employment Equity (CEE) issue any  code of good practice and that  these codes are  to be used to help employers, employees and trade unions in the  implementation of the  Act.

The Code as stipulated in item  4 states that  it should:



Apply to all workplaces whether formal,  informal or self employed; and

Be read with other  employment related codes of good practice on the  management of HIV/ AIDS in the workplace.


1.2  Background to the  TAG



The Department of Labour and the  Commission for Employment Equity, in association with the  Department of Health and the  International Labour Organisation (ILO), have recognised the  need to assist employers, employees and trade unions in the  management of HIV/AIDS in the  workplace. The Technical Assistance Guidelines (TAG) presented in this document provides implementation guidelines for employers, employees and trade unions on how to respond to the scourge of HIV/AIDS and its impact in the  workplace.


1.2.1 Specific objectives of the  TAG



Help employers and trade unions to implement the  Code;

Provide detailed guidance and information on the  process in which the  principles  in the  Code can be translated into day-to-day practice; and

Identify best  practices to respond to the  impact of HIV/AIDS in the  workplace.



1.3  Impact of HIV/AIDS in the  workplace



Organisations will experience the  impact of HIV/AIDS in a number of ways.



High morbidity (health of employees) and mortality (deaths) rates. As infected employees become ill they will take additional sick leave and this will disrupt operational activities.  It is estimated that  the  costs  to a manufacturing company could increase. This disruption  will be amplified when  more qualified and experienced employees are absent, as finding a temporary replacement becomes more difficult.


Mortality rates  attributed to HIV/AIDS infection  are  expected to increase significantly. The loss of an  employee requires an  appropriate replacement to be selected and trained, often  at great cost  to the  organisation.  For highly qualified staff this is often  difficult, particularly in developing economies with skill shortages. This could mean that  an organisation’s remuneration budget could increase.


As the  HIV/AIDS pandemic advances, increases in deaths will lead to increased absenteeism as employees attend funerals  of family members, friends and colleagues or take time  off to care for sick family members.


A fear  of infection  and death, may  lead to increased suspicion of others  as well as resistance to shouldering the additional responsibilities for colleagues who are  off sick, not fully functional or away  from work. This could lead to low staff morale.


Employers  and employees will feel the  impact of HIV/AIDS as the  cost  of employee benefits increases.



Changing levels of disposable income will affect the  markets and the  profile of customers may  also  change with the intensifying HIV/AIDS pandemic. If the  organisation provides products and services, the  demand for these could increase (example, health and welfare) while the  ability to provide the  services  may  be affected due to the  loss of key personnel.


Finally, local  capital may  be reduced as assets are  used to meet immediate health needs.  Foreign investors may  be concerned about the  impact of HIV/AIDS when  contemplating investment.

1.3.1 Impact of HIV/AIDS on  the  economy



HIV/AIDS has  a profound impact on growth,  income and poverty.  It is estimated that  the  annual per  capita growth in half the  countries of sub-Saharan Africa will fall as a direct  result of HIV/AIDS. In addition, per  capita GDP in some of the hardest hit countries may  drop  and per  capita consumption may  fall even more.


People at all income levels are  vulnerable to the  economic impact of HIV/AIDS, but the  poor  suffer most  acutely.  The management of HIV/AIDS without resources pushes people deeper into poverty  as households lose their breadwinners to HIV/AIDS, livelihoods are  compromised, and savings  are  consumed by the  cost  of health care and funerals.


1.3.2 Impact on  other sectors



The HIV/AIDS epidemic will have a significant  impact in a number of other  areas including:



Families and communities;

The informal sector; and

Development objectives and poverty  reduction programmes.



1.3.3 Responding to the  impact of HIV/AIDS in the  workplace



There are  a number of reasons why every role-player in the  workplace should  be involved  in responding to the prevention and the  management of HIV/AIDS in the  workplace. In terms  of the  Non-Intervention scenario projections based on the  Metropolitan Doyle model, if South Africans do  nothing  about the  prevention and management of the HIV/AIDS pandemic, the  following scenarios are  painted:




The following  is adapted from the  Non-intervention scenario projections on  the  Metropolitan Doyle  model:


In 2001,  18,02% of the  South African workforce between the  ages of 16-59  were  HIV positive.   If nothing  is done, it is projected that  this number will increase to 22,35% in 2005  and to 24,08% in 2010

In 2001,  0,93%  of the  South African workforce had a full-blown AIDS. If nothing  is done, it is projected that  this number will increase to 1,98%  in 2005  and to 2,91  in 2010

In 2001,  235 000 new AIDS cases were  reported.  If nothing  is done, it is projected that  this number will increase to 329 000 in 2005  and to 541 000 in 2010.

In 2001,  197 000 AIDS orphans were  reported.  If nothing  is done, it is projected that  this number will increase to one million in 2005  and to two million in 2010.

In 2001,  the  life expectancy of females was estimated at 52 years.   If nothing  is done, it is projected that  the life expectancy rates  will be reduced to 43 years  in 2005  and to 37 years  in 2010.

In 2001,  the  life expectancy of males was estimated at 49 years.   If nothing  is done, it is projected that  the  life expectancy rates  will be reduced to 43 years  in 2005  and to 38 years  in 2010.


These  reasons alone make it imperative for employers, employees and trade unions to be involved in the  reversal of the  scourge of the   HIV/AIDS pandemic.




2. Key legal and policy components of the  Code




This chapter provides an  overview of the  legal  and policy framework  on the  elimination of unfair discrimination on the ground of HIV status  and the  promotion if equality  in the  workplace upon which the  Technical Assistance Guide (TAG) on the  Code of Good Practice on HIV in the  Workplace is based. The chapter also  provides assistance on the interpretation of the  key legal  concepts or phrases used in the  Code and the  Employment Equity Act No 55 of 1998

(S 5-11 thereof)  and this includes guidelines on action required in compliance with the  law.



The TAG and Code on HIV/AIDS in the  workplace are  based on the  national and international legal  framework  for eliminating unfair discrimination and  the  promotion of equality  in the  workplace. This framework,  includes the Constitution  of the  Republic of South Africa, relevant international instruments, including United Nations (UN) Human Rights Treaties, International Labour Organisation (ILO) Conventions and appropriate regional (Africa) and sub-regional (SADC) instruments, as well as national laws and policies.  As indicated in chapter 1, the  Code and its supporting TAG are  issued  in terms  of Section  54(1)(a) of the  Employment Equity Act, No 55 of 1998  and section 203(1)(a) of the Labour Relations Act, No 66 of 1995.


2.1  Eliminating unfair  discrimination and promoting a non-discriminatory workplace


The Code provides a framework  for the  promotion of equality  and non-discrimination against individuals with HIV

infection, and between HIV/AIDS and other  comparable medical and health conditions.



Item 6.1 of the  Code expressly states that  no person with HIV or AIDS shall be unfairly discriminated against within the  employment relationship  or within any  employment policies  or practices.




People living with HIV/AIDS face many forms of unfair discrimination in the  work environment.

The law protects employees and job applicants from unfair discrimination on the  basis  of HIV/AIDS, specifically section 5 (read with section 6), requires  employers to "take steps  to promote equal opportunities in the  workplace by eliminating unfair discrimination (on various grounds including HIV status) in any  employment policy or practice". It furthermore encourages the  promotion of equality  on the  basis  of HIV/AIDS in all employment policies  and practices.

Section  6(2)(b) states that  "it is not unfair discrimination to distinguish, exclude or prefer  any  person on the  basis  of an  inherent  requirement of a job."

Eliminating unfair discrimination on the  basis  of HIV/AIDS in the  workplace is a vital step  towards  reducing the impact of HIV on affected employees, as well as preventing the  further spread of the  epidemic.

The law prohibits harassment on the  grounds of HIV status  or a combination of HIV status  and one or more prohibited grounds.



2.1.1 Legal framework for eliminating unfair  discrimination and promoting a non-discriminatory workplace


Constitution of the  Republic of South  Africa Act, 108  of 1996. Section  9 of the  Constitution  provides that  every person is entitled  to equality  before the  law and equal protection of the  law, and prohibits both  the  State  and any person from unfairly discriminating directly or indirectly against another person on various grounds, such  as race, gender and disability. The prohibition covers grounds that  are  listed in the  Constitution,  unlisted  grounds and a combination of grounds.


Although HIV and AIDS is not a listed ground in the  equality  clause, in the  case of Hoffmann v South  African  Airways the  Constitutional Court found  that  discrimination on the  basis  of HIV status  was unfair discrimination in terms  of the equality  clause.

Hoffmann v South  African  Airways 2001 (1) SA 1 (CC)



Hoffmann applied for a position  as a cabin attendant with SAA. He successfully  completed a 4-stage interview process and a medical examination, and was found  to be a suitable candidate for the  position  in all respects. However,  when  the  results of an  HIV test came back positive, his medical report  was altered to read "HIV Positive" and "unsuitable"  and he  was denied the  position  of cabin attendant.


The Constitutional Court found  that  SAA had unfairly discriminated against Hoffmann in rejecting his application for employment on the  basis  of his HIV status,  and that  this was a violation of the  equality  clause. The case made it clear that  our Courts will find discrimination on the  basis  of HIV status  to be unfair discrimination, where  the  impact of the  discrimination is an  infringement of a person’s  dignity.





Promotion of Equality  and Prevention of Unfair Discrimination Act, No. 4 of 2000



Section  6 of the  Equality Act prohibits unfair discrimination against any  person, and this will include employees living with HIV or AIDS. Section  34(1) of the  Equality Act recognises HIV and AIDS as a serious issue and recommends that  the Equality Review Committee investigate and make recommendations  to the  Minister of Justice on whether HIV/AIDS should  be specifically included in the  Act as prohibited grounds of unfair discrimination.


With regard to employment, this Act only applies to workplace issues that  are  not covered by the  Employment Equity Act. For example, employees within the  SANDF, National  Intelligence Agency and the  Secret  Service are  excluded from the  Employment Equity Act and protected by the  Equality Act.


Employment Equity Act, No. 55 of 1998



The Employment Equity Act, No 55 of 1998  was the  first piece of legislation  to specifically prohibit unfair discrimination against an  employee or job applicant on the  basis  of HIV status.  Section  6 (1) states that:


"No person may  unfairly discriminate directly or indirectly against an  employee, in any  employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital  status,  family responsibility, ethnic or social origin, colour,  sexual  orientation, age, disability, religion, HIV status, conscience, belief,  political  opinion,  culture, language and birth.


It should  be noted that  the  Employment Equity Act includes a job applicant in the  definition of an  employee for purposes of section 6(1). This means that  both  employees and job applicants are  protected  against unfair discrimination on the  basis  of HIV status,  in the  workplace. Furthermore the  Act prohibits harassment on the  basis  of HIV status,  as well as direct  and indirect  unfair discrimination.


According to section 6(2)(b) of the  Act, it is not unfair discrimination to distinguish, exclude or prefer  any  person on the basis  of an  inherent  requirement of a job. This means that  if a person is treated differently, or excluded from an employment  opportunity because of an  ‘inherent requirement of a job’, this will not be considered unfair discrimination.


2.1.2 Defining  unfair  discrimination in employment policies and practices



Unfair discrimination:



Drawing a distinction,  between individuals or groups, based on their personal characteristics which:



Imposes burdens, obligations or disadvantages on such  individuals or groups which are  not imposed on others;  or

Withholds or limits access to opportunities and benefits available to other  members of society

Direct  and indirect discrimination



Discrimination may  be direct  when  a distinction,  exclusion  or preference is made on the  basis  of a direct  reference to a person’s  HIV status.  For example, an  employment policy that  provides lower remuneration to employees living with HIV/AIDS directly discriminates on the  basis  of HIV/AIDS.


Discrimination may  be indirect,  when  the  application of a certain practice or policy impacts more negatively on people living with HIV/AIDS.  For example a training and development policy that  provides training opportunities to employees who have not used sick leave during a given  period may  indirectly discriminate against employees living with HIV/AIDS who are  more likely to have used sick leave when  they start to develop opportunistic infections  related to HIV/AIDS.




Employment policies and practices:



Recruitment procedures, advertising and selection criteria: Recruitment and selection procedures and policies cannot exclude, directly or indirectly, people on the  basis  of HIV status,  for instance, by insisting that  only applicants who are  HIV negative may  apply.

Appointments and the  appointment process: The appointment process cannot unfairly discriminate, directly or indirectly, against applicants living with HIV/AIDS, for instance by denying appointments to those who test HIV positive as was done in the  Hoffmann v SAA case.

Job classification and grading: The policies  relating  to job classification and grading of employees should  not unfairly discriminate against employees living with HIV/AIDS by for instance, denying them, directly or indirectly, certain types  of employment for this reason.

Remuneration, employment benefits and terms and conditions of employment:  Employees with HIV/AIDS may not be unfairly discriminated against, directly or indirectly, for instance by offering them lower rates  of pay  or denying them employee benefits, on the  basis  of their HIV/AIDS status.

Job assignments: HIV/AIDS should  not be a factor used to unfairly discriminate, directly or indirectly against employees in assigning jobs. For instance, an  employee living with HIV/AIDS should  not be unfairly denied the opportunity to take job assignments abroad.

The working  environment and facilities: Policies relating  to the  working environment and work facilities should  not unfairly discriminate, directly or indirectly, against employees living with HIV/AIDS. For instance, employees living with HIV/AIDS should  enjoy equality  of access to workplace facilities such  as toilets and canteens.

Training and development: Training and development policies  may  not unfairly discriminate, directly or indirectly, for instance by denying training opportunities to employees living with HIV/AIDS.

Performance evaluation systems: Systems and policies  regarding performance evaluation should  not unfairly discriminate, directly or indirectly, on the  basis  of HIV status,  so that  employees living with HIV/AIDS are  evaluated on a fair and  non-discriminatory basis.

Promotion: HIV status  should  not be used as a factor to unfairly discriminate, directly or indirectly, against an employee in determining promotion opportunities.

Transfer: Policies may  not unfairly discriminate, directly or indirectly against an  employee with HIV/AIDS.

Demotion: HIV/AIDS should  not be used to unfairly discriminate, directly or indirectly, against an  employee by for instance, demoting someone who is known to be living with HIV/AIDS.

Disciplinary measures other than dismissal: Policies and procedures regarding disciplinary measures should ensure that  HIV status  is not used to unfairly discriminate, directly or indirectly against employees in the  application of such  measures.

Dismissal:  Dismissal procedures may  not unfairly discriminate, directly or indirectly on the  basis  of HIV/AIDS, for instance by dismissing employees who are  known to be living with HIV/AIDS.


Inherent requirements of a job:



Employment policies  or practice that  distinguishes,  excludes or prefers  a person on the  basis  of HIV status  may  not be unfair, if it is based on the  inherent  requirements of a particular job. An inherent  requirement of a job is an  essential characteristic, quality or capacity that  is required in order  to fulfil the  duties  of a job.

It is difficult to imagine when  HIV negativity  could be considered to be an  inherent  requirement of a job. Certainly, if a job requires  strenuous labour, it may  be that  a certain level of physical  fitness is an  ‘inherent requirement’ of a job. Denying  such  a position  to a person living with HIV/AIDS, whose  physical  capacity was impaired, would not be unfair discrimination. But in this situation,  it is the  level of physical  fitness, not the  person’s  HIV status,  which is the  inherent requirement of the  job.




HIV status an ‘inherent requirement’ of a job



In the  case of Hoffmann v SAA, South African Airways argued that  HIV negativity  was an  inherent  requirement of the position  of cabin attendant. They based their argument on the  fact  that  a cabin attendant has  to be fit for

world-wide duty, and in order  to fulfil travel duties  to foreign  destinations, a cabin attendant is required to be vaccinated against yellow fever. SAA argued that  medical evidence showed that  a yellow fever vaccination was unsafe for people living with HIV/AIDS. HIV negativity  was thus argued to be an  ‘inherent requirement’ of the  job.


The medical evidence however, showed that  it was not necessarily unsafe for people living with HIV/AIDS to be vaccinated against yellow fever. Thus the  argument that  HIV negative status  was an  inherent  requirement of the position  of cabin attendant was rejected by the  Court.




Active promotion of equal opportunities and elimination of unfair  discrimination (non-discrimination)



Ensuring non-discrimination on the  basis  of HIV/AIDS means more than  simply prohibiting  unfair discrimination in employment policies  and practices. The Code recommends that  employers and trade unions should  take steps  to eliminate unfair discrimination, through positive measures such  as:


Developing HIV/AIDS policies  and programmes for the  workplace, such  as HIV/AIDS policies  based on the  principles of non-discrimination and equality;

Awareness, education and training on the  rights of all persons with regard to HIV/AIDS;

Mechanisms to promote acceptance and openness around HIV/AIDS;

Providing support for all employees infected or affected by HIV/AIDS; and

Developing grievance procedures and disciplinary measures to deal with HIV-related complaints in the  workplace.


2.1.3 Key issues  on  eliminating unfair  discrimination and promoting a non-discriminatory workplace


Common problems


Companies and organisations refusing to hire job applicants who are  known to be living with HIV, without having regard to their capacity to perform the  inherent  requirements of a job. Female workers in particular may experience greater discrimination, as through ante-natal screening they are  more likely to know their HIV status;

Employees known to be living with HIV/AIDS being offered different,  and often  sub-standard, terms  and conditions of employment and employee benefits;

Employees living with HIV/AIDS being passed over for promotional and training opportunities; and

Employees living with HIV/AIDS being dismissed simply on the  basis  of their HIV status,  once this becomes apparent, without regard to their capacity to perform the  inherent  requirements of a particular job.



Case study:

Unfair demotion and dismissal on  the  basis of HIV status



The AIDS Law Project case files between 1993–2000 reveal  that  23% of all cases received related to unfair discrimination due  to HIV status  in the  workplace.

In a case dealt with by the  AIDS Law Project,  a woman who worked as a radio  controller  for a company was demoted when  the  employer found  out her HIV status.   She was subsequently moved to the  position  of a security guard and then  to a ‘cleaning position’. She was eventually dismissed and the  employer failed  to provide her with her ‘blue card"  which would have enabled her to draw  unemployment benefits.

Richter,  M 2001




Issues  for trade unions



Being involved  in processes to develop non-discriminatory HIV/AIDS policies  and programmes;

Recognising gender issues and their possible impact on employee rights; and

Ensuring that  union members are  aware of their rights and the  importance of non-discrimination on the  basis  of HIV




Issues  for small  businesses and the  informal sector



Ability to manage the  impact of HIV and AIDS, as the  loss of one or more employees can have a major  impact on productivity  and the  survival of the  enterprise.

The importance of fostering key partnerships with organisations and social  partners in order  to access the necessary resources to reduce the  impact of HIV and AIDS upon affected employees and to prevent further HIV infections.


2.1.4 Implementation guidelines on  eliminating unfair  discrimination and promoting a non-discriminatory workplace


Rationale for the  elimination of unfair  discrimination



South Africa has  committed itself in terms  of the  highest  laws in the  land  to equality, human dignity and freedom.

The Constitution  recognises that  certain vulnerable groups in society  need more protection, as a result of the impact that  discrimination has  on their lives, in order  to assist them to participate fully in their rights and entitlements.

It is internationally  recognised that  protecting the  rights of people living with HIV/AIDS is an  important step  in minimising the  impact that  HIV has  on the  lives of those infected and affected, as well as preventing the  spread of the  HIV epidemic.

Promoting  and supporting the  rights of employees living with HIV/AIDS helps  them to continue working productively for as long as possible. It also  creates a climate of openness and acceptance in which those affected will be more willing to come forward for testing,  counselling and care, thus helping to reduce the  spread of HIV.




Hoffmann v South  African  Airways 2001 (1) SA 1 (CC)



"People who are  living with HIV constitute a minority. Society has  responded to their plight with intense prejudice. They have been subjected to systemic disadvantage and discrimination. They have been stigmatised and marginalised. As the  present case demonstrates, they have been denied employment because  of their HIV positive status  without regard to their ability to perform the  duties  of the  position  from which they have been excluded. Society ’s response

to them has  forced many of them not to reveal  their HIV status  for fear  of prejudice. This in turn has  deprived them of the  help  they would otherwise  have received. People who are  living with AIDS are  one of the  most  vulnerable groups in our society  … The impact of discrimination on HIV positive people is devastating. It is even more so when  it occurs in the  context of employment. It denies them the  right to earn a living. For this reason, they enjoy special protection

in our law."

Judge Ngcobo

Checklist: Prohibition and  elimination of unfair  discrimination



Develop a policy on the  elimination of unfair discrimination on the  basis  of HIV status  and include the  elimination of harassment on the  grounds of HIV status;

Ensure that  other  policies  and procedures that  promote  non-discrimination in your work environment include HIV

status  or AIDS as a ground for non-discrimination;

Evaluate and review your employment policies  and practices to ensure that  they do  not discriminate, either directly or indirectly, on the  basis  of HIV/AIDS; and

Take discrimination seriously: ensure that  disciplinary procedures are  in place, or that  existing grievance procedures can be utilised, to deal with disputes relating  to unfair discrimination on the  basis  of HIV and AIDS.



Daimler Chrysler  South  Africa (Pty) Ltd Workplace Policy on  HIV/AIDS Stigmatisation and Discrimination


"Through the  provision of information, education and communication about HIV and AIDS, and normal DCSA disciplinary and grievance procedures, this policy aims  to protect all HIV positive employees from stigmatisation and discrimination by co-workers,  based on their HIV status.  It guarantees that  job access, status,  promotion, security, and training will not be influenced merely  by the  HIV status  of an  employee."

June  2001




Checklist: Promotion of the  elimination of unfair  discrimination



Make your commitment to non-discrimination on the  basis  of HIV/AIDS known in the  work environment.

Create an  awareness of the  rights of employees living with HIV/AIDS, through education, training and media activities;

Be seen to provide programmatic support for employees living with HIV/AIDS;

Consider involving people living openly  with HIV/AIDS in your awareness and support services  for affected employees;

Determine and address the  fears,  prejudices and misconceptions around HIV and AIDS in your working environment, in order  to build understanding and support for employees living with HIV and AIDS.



Educational programmes around HIV/AIDS and discrimination



" The objectives of education,  prevention, counselling and training should  be:

To create awareness of the  HIV/AIDS epidemic;

To promote safe  sex through condom  distribution;

To provide care and support for employees with HIV/AIDS;

To remove the  stigma and  discrimination by co-workers,  unions or employers against those infected.



The company, its employees and their respective trade unions or associations agree that  HIV/AIDS education and prevention programmes shall be conducted at the  workplace.


Education shall be the  vehicle to combat discrimination and  irrational responses to HIV/AIDS in the  workplace. Attendance at such  programmes shall be compulsory for all employees including management personnel.


Education programmes shall inform management and employees of the  provisions of the  employment codes on

HIV/AIDS and the  rights and duties  of persons living with HIV/AIDS.

Impala Platinum  Limited  HIV/AIDS Policy

Roles and responsibilities






Showing a commitment to addressing HIV and AIDS in the  workplace, through taking a strong  stand on unfair discrimination in relation  to HIV and AIDS, developing  non-discriminatory workplace HIV/AIDS policies,  and setting aside resources (both  financial  and human) for their implementation.

Assisting in creating a climate of non-discrimination by ensuring  that  employees with HIV/AIDS are  given  the necessary acceptance and support, and by dealing fairly with HIV-related discrimination and  disputes.


Employers’ organisations



Initiating and supporting educational  and awareness programmes  on the  rights of employees living with HIV/AIDS, in consultation with workers and their unions; and

Encouraging and supporting fellow employers, government and labour, to contribute towards  addressing

HIV-related discrimination within the  working environment through key partnerships.



Individual employees



Participating in awareness, education and training opportunities;

Confronting and addressing their own underlying  fears  and prejudices; and

Making their needs known.



Trade unions and employees



Assist in determining the  needs of employees living with HIV/AIDS in order  to ensure that  these needs are accommodated within workplace HIV/AIDS policies;

Assist in creating an  enabling environment of non-discrimination, acceptance and support for affected employees through awareness, education and training programmes; and

Using their bargaining power  to ensure that  HIV/AIDS workplace policies  receive adequate resource allocation, and are  implemented in an  effective and efficient  manner in the  working environment.


Social partners



Entering into collaborative partnerships with government departments, and key non-governmental agencies in order  to share information and expertise on HIV/AIDS and unfair discrimination.




Partnership against AIDS



"The power  to defeat the  spread of HIV and AIDS lies in our partnership – as youth,  as women and men, as business people, as workers, as religious people, as parents and teachers, as students, as healers, as farmers  and farm workers, as the  unemployed and the  professionals, as the  rich and the  poor  – in fact  all of us. Today we join hands in

the  Partnership  Against HIV/AIDS, united  in our resolve  to save the  nation. As Partners Against AIDS, together we pledge to spread the  message … As Partners Against AIDS, together we pledge to care! … As Partners Against AIDS, together we pledge to pool  our resources and to commit our brain power!  … Together, as Partners Against AIDS, we can and

shall win."

Deputy  President Thabo  Mbeki, 1998.


2.2  Testing, confidentiality and disclosure



The Code provides that  all HIV testing  shall be undertaken in compliance with section 7 of the  Employment Equity Act and other  legal  requirements. The key requirement is that  no testing  should  take place without authority of the  Labour

Court.  Confidentiality  must  be maintained and an  environment, which promotes openness and disclosure, should  be encouraged.


HIV testing



Item 7.1.1  of the  Code provides:



"No employer may  require  an  employee, or an  applicant for employment, to undertake an  HIV test in order  to ascertain that  employee’s HIV status.  As provided for in the  Employment Equity Act, employers may  approach the Labour Court to obtain authorisation for testing."


The Code recommends instances where  HIV testing  should  only take place with Labour Court authorisation, and instances where  HIV testing  at the  request of an  employee may  be permissible within the  working environment in the absence of Labour Court authorisation.


Item 7.1.6  states that  all testing  should  be conducted in accordance with the  Department of Health’s National  Policy on Testing for HIV.


Item 7.1.8  provides for surveillance testing:

"Anonymous,  unlinked surveillance or epidemiological HIV testing  in the  workplace may  occur provided it is undertaken in accordance with ethical and legal  principles  regarding such  research. Where such  research is done, the  information obtained may  not be used to unfairly discriminate against individuals or groups of persons.  Testing

will not be considered anonymous if there  is a reasonable possibility that  a person’s  HIV status  can be deduced from the  results."




Confidentiality and disclosure



Items 7.2.1  and 7.2.2  state:



"All persons with HIV or AIDS have the  legal  right to privacy.  An employee is therefore not legally required to disclose his or her HIV status  to their employer or to other  employees.


Where an  employee chooses to voluntarily disclose his or her HIV status  to the  employer or to other  employees, this information may  not be disclosed to others  without the  employee’s express  written consent. Where written consent is not possible, steps  must  be taken to confirm  that  the  employee wishes to disclose his or her status."


The Code provides in item  7.2.3  that  mechanisms should  be created to enhance disclosure of HIV status  within the workplace.




Key points



The following key points are  made in this section:



Confidential, voluntary HIV testing  and counselling form an  important part  of an  HIV/AIDS and the  workplace programme. Steps  should  be taken to promote such  testing;

HIV testing  may  only take place within the  workplace following Labour Court authorisation. Authorised testing  must, unless the  contrary  is stipulated by the  Labour Court,  be undertaken with informed consent and counselling;

All employees have a legal  right to privacy;

All workplaces need  to work towards  an  environment in which openness  and disclosure of HIV status  is promoted. Steps  should  be taken to create such  an  environment;

The gender issues relating  to HIV testing  must  be addressed in order  for a workplace programme to be successful; and

Process  and impact assessments can be used to monitor  HIV testing  within the  workplace.

2.2.1 Legal framework on  testing, confidentiality and disclosure



Constitution of the  Republic of South  Africa Act, No.108 of 1996



The Constitution  provides that  every person has  the  right to privacy  and bodily integrity.  This means that  no person may be treated (including  HIV testing) without informed consent and they have the  right to privacy  regarding their HIV status.


Employment Equity Act, No. 55 of 1998



The Employment Equity Act prohibits testing  of an  employee for HIV without authorisation by the  Labour Court.  This means employers are  required to apply to the  Labour Court for a Court Order granting permission to test for HIV before requiring employees to submit  to such  a test.


Section 7(2) of the  Act states:



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


Section 50(4) provides the  Court with the  power  to impose conditions on authorised HIV testing.  It states if the  Labour Court declares that  the  medical testing  of an  employee as contemplated in section 7 is justifiable, the  Court may make any  order  that  it considers appropriate in the  circumstances,  including imposing conditions relating  to:


(a) The provision of counselling;

(b) The maintenance of confidentiality;

(c) The period during which the  authorisation for any  testing  applies; and

(d) The category or categories of jobs or employees in respect of which the  authorisation for testing  applies."




Criteria the  Labour Court  will take into account in determining whether HIV testing is justifiable


The prohibition on unfair discrimination

The need for the  HIV testing

The purpose of the  test

The medical facts

Employment conditions

Social policy

Fair distribution of employee benefits

Inherent  requirements of the  job

Categories of employees concerned


The Court will also  take note of the  following factors  even though they do  not relate directly to the  justifiability inquiry:

Attitude of employees

Whether  the  test will be voluntary or compulsory

Financing of the  test

Employee preparedness for the  testing

Pre-test counselling

Nature  of the  proposed test and procedure

Post-test counselling










Joy Mining v NUMSA (2002) BLLR 372 (LC) at para. 22 – 23

Common law


Every person has  a common law right to privacy,  which includes the  right to:


Not be subjected to medical treatment (including  HIV testing) without informed consent; and

Confidentiality  regarding their medical condition and treatment.


The duty of confidentiality is particularly strong  within the  doctor-patient relationship, where  medical  practitioners are under a legal  and ethical duty to protect confidentiality. The Supreme Court of Appeal held  in Jansen van  Vuuren and Another NNO v Kruger (1993 (4) SA 842 (A)) that  a doctor acted unlawfully when  he  informed two other  doctors on the golf course of a patient’s HIV status.



On the  value  of confidentiality, our Courts have quoted the  rationale used in English law:

"On the  one hand it protects the  privacy  of the  patient. On the  other  it performs a public  interest function.  This was recognised in X v Y (1988) 2 All ER 648 653 a - b where  Rose J said:


In the  long run, preservation of confidentiality is the  only way of securing public  health; otherwise  doctors will be discredited as a source of education, for future individual patients 'will not come forward if doctors are  going  to squeal on them'. Consequently confidentiality is vital to secure public  as well as private  health, for unless those infected come forward they cannot be counselled and self treatment does not provide the  best  care ..."


Jansen van Vuuren and  Another  NNO v Kruger




There are  very few exceptions to the  confidentiality rule. These include:



Disclosure of a person’s  HIV status  to a third party is authorised in terms  of ethical guidelines in circumstances where  they are  at risk of infection;

A Court may  order  a person to disclose the  information;  or

A Court may  find a disclosure made in the  public  interest to be justifiable.




2.2.2 Defining  the  provisions on  HIV testing, confidentiality and disclosure



HIV testing



An HIV test is generally a blood test, which is screened for HIV anti-bodies. The HIV test may  however take many forms. Medical testing  (which would include testing  for HIV) is defined in section 1 of the  Employment Equity Act as "any test, question, inquiry or other  means designed to ascertain or which has  the  effect of enabling the  employer to ascertain whether an  employee has  any  medical condition."




This means it would include:



Blood, urine, saliva or any  other  medical tests for HIV;

Questionnaires;  or

Any other  form of inquiry about possible risk behaviour or HIV status  e.g. questions about a job applicant’s sexual orientation.


The Code prohibits an  employer from requiring an  employee or job applicant to undertake an  HIV test in order  to ascertain an  employee’s HIV status,  unless such  testing  is authorised by the  Labour Court.  This means that  if an employer wishes to determine the  HIV status  of an  employee, for whatever reason, the  employer can only do  so where  the  Labour Court has  authorised HIV testing.


The Code indicates circumstances where  an  employer must  approach the  Labour Court for authorisation if the

employer wishes to undertake HIV testing:



During an  application for employment (for example, pre-employment HIV testing  of job applicants);

As a condition of employment (for example, where  an  employer requires  all employees to undertake an  HIV test as part  of their terms  and conditions of employment);

During procedures related to termination of employment (for example, requiring an  employee to undertake an  HIV

test during incapacity proceedings);

As an  eligibility requirement for training and staff development programmes; and

As an  access  requirement to obtain employee benefits (for example, where  an  employer requires  an  employee to undertake an  HIV test in order  to access a retirement fund benefit).


The Code suggests that  testing  without the  Labour Court authorisation is permissible at the  request of an  employee, in the  following circumstances:


As part  of a health care service  provided in the  workplace;

In the  event of an  occupational accident carrying  a risk of exposure to blood or other  body fluids;

For the  purposes of applying for compensation following an  occupational accident involving a risk of exposure to blood or other  body fluids.




In Joy Mining v NUMSA the  Labour Court held  that  although the  issue was not before them for consideration they were  concerned as to whether an  employee could waive  their rights in terms  of item  7(2) of the  EEA as suggested by the  ‘permissible testing’ section in the  Code. It is therefore advisable to take legal  advice before embarking on any  of the  above testing  without Labour Court authorisation.




All HIV testing,  whether it be ‘authorised’ HIV testing  or ‘permissible’ HIV testing,  should  only take place:



With informed consent;

Within a health care worker and employee-patient relationship;

With informed consent and pre-  and post-test counselling; and

With strict procedures relating  to confidentiality.

With regard to ‘permissible’ testing,  the  testing  may  only take place at the  initiative of an  employee.

In accordance with the  Department of Health’s National  Policy on Testing for HIV.



Informed consent:



Informed consent is defined in the  Code as circumstances where  the  individual has  been provided with information, understands it and based on this has  agreed to undertake the  HIV test or treatment. It implies that  the  individual understands what  the  test is, why it is necessary, the  benefits, risks, alternatives and any  possible social  implications of the  outcome.



"… there  can only be consent if the  person appreciates and understands what  the  object and purpose of the  test is, what  an  HIV positive test result entails  and what  the  probability  of AIDS occurring thereafter is. Evidence was led  in this case on the  need for informed consent before the  HIV test is performed. Members of the  medical profession  and others  who have studied and worked with people who have tested HIV positive and with AIDS sufferers have developed a norm  or recommended minimum requirement necessary for informed consent in respect of a person who may  undergo such  a blood test. Because of the  devastation which a positive test result entails,  the  norm  so developed contains as a requirement counselling both  pre-  and post-testing, the  latter in the  event of a positive test result."

C v Minister of Correctional Services  1996  (4) SA 292 (T)

Surveillance testing:



Anonymous and unlinked surveillance or epidemiological testing  is defined in the  Code as anonymous, unlinked testing which is done in order  to determine the  incidence and prevalence of disease within a particular community  or group to provide information to control,  prevent and manage the  disease. The Code states further that  such  testing

will not be considered anonymous if there  is a reasonable possibility that  a person’s  HIV status  could be deduced from the  results.





Confidentiality  means keeping personal information about  an  employee from others  unless the  employee has consented to the  disclosure. Disclosure occurs when  employees voluntarily declare their HIV status  either to a limited number of persons or the  entire workforce.


The Code provides for confidentiality of an  employee’s HIV status.  This means that  an  employee is under no obligation to disclose his or her HIV status  to an  employer or to other  employees.


Openness and disclosure:



According to the  Code, where  an  employee does choose to disclose his or her HIV status,  (for example, to an

HR manager or to an  occupational health worker), the  information may  not be disclosed further without the  written consent of the  employee.


Mechanisms should  be created within the  workplace to encourage openness, acceptance and support for employers and employees who do  disclose their HIV status.  The Code recommends the  following steps  be taken:


(i) Encouraging persons openly  living with HIV or AIDS to conduct or participate in education, prevention and awareness programmes;

(ii) Encouraging the  development of support groups for employees living with HIV or AIDS; and

(iii) Ensuring that  persons who are  open about their HIV or AIDS status  are  not unfairly discriminated against or stigmatised.


2.2.3 Key issues  on  HIV testing, confidentiality and disclosure



Common problems



HIV testing  without Labour Court authorisation;

HIV testing  for discriminatory  purposes;

Breaches of confidentiality; and

A lack of support for employees who openly  disclose their HIV status.


A Kwa-Maphumulo teacher was dismissed by the  school’s governing body after  she  informed the  principal  that  she was HIV positive. The principal  then  informed other  teachers and the  governing body of her HIV status  without her permission.

Natal  Witness, 22 December 2001


Issues  for trade unions



Ensuring employers act lawfully; and

Ensuring employees have access to voluntary HIV testing  and counselling programmes  either within the  workplace or within the  community.


Issues  for employers and employer organisations:



Parity between the  costs  of providing  a voluntary HIV testing  and counselling programme  and the  long term

benefits of a workforce with a lower HIV infection  rate;

Encourage female and male employees to come forward for HIV testing  and ensure that  they have access to social  support for dealing with the  results.

Ensuring legal  requirements are  met  without undue costs  being incurred;  and

Promoting  voluntary counselling and testing  as an  entry point for positive living and treatment.

Creating a caring working environment that  affirms persons affected by HIV/AIDS and protects them from harassment.


2.2.4 Implementation guidelines on  HIV testing, confidentiality and disclosure


Why is HIV testing, confidentiality and disclosure important?



HIV testing  forms the  link between prevention and care programmes. HIV testing  helps  employees to determine their HIV status,  obtain support, information, the  skills and means to prevent infecting  others.  It also  enables employees to become involved  in a care programme to protect their own health.

Without guarantees of confidentiality it is difficult to encourage openness and disclosure; and

With more employees aware of their HIV status  it is easier to encourage openness, disclosure and acceptance in the  workplace.

Anonymous testing  may  allow an  employer to estimate the  future impact of HIV on the  business and to plan accordingly.


What  steps can you  take to prevent unlawful  HIV testing, breaches of confidentiality and to promote openness?


Understand the  law on HIV testing,   confidentiality and  disclosure;

Review current  practices to ensure compliance with law; and

Discipline persons not adhering to the  policy guidelines and the  law;

Address  legal  rights in education, training and awareness programmes.




Case study:  Ndebele Mining Company (Pty) Ltd



The Ndebele Mining Company (Pty) Ltd applied to the  Labour Court for authorisation to provide voluntary HIV testing and counselling services  to all staff employed at their kaolin mine,  under the  following conditions:


All HIV testing  would be at the  request of the  employee and be voluntary;

All persons being tested for HIV would undergo confidential, pre-  and post-  test counselling;

The test results would remain confidential and only be disclosed with the  written consent of the  employee concerned; and

No person would be discriminated against on the  basis  of the  HIV test results.



The Labour Court granted the  order  after  they had asked the  employer to serve  the  Court papers on all the employees who would be affected by the  Court Order,  to give employees an  opportunity to apply to Court to express their views. The Court gave the  company permission to provide voluntary HIV testing  and counselling services in accordance with the  proposed conditions.




Guideline: Making an application  to the  Labour Court  for authorisation for HIV testing


Applications do  not need to be made in every individual case;

Papers placed before the  Court should  be as detailed as possible;

It is important to get  the  support of all stakeholders within the  workplace before making the  application. This will include notifying all affected employees and the  relevant trade unions;

Other interested parties  may  make applications to the  Labour Court in the  form of amicus curia  (a friend of the

Court), if they have different  and useful submissions  to make to the  Court;

The assistance of an  attorney will be needed in making the  application.




What  steps can you  take to promote lawful HIV testing, confidentiality and disclosure?



Research shows that  employees will not participate in a voluntary HIV testing  and counselling service  or disclosure campaign, unless:


They are  certain they will not be discriminated against on the  basis  of their HIV status;

There are  guarantees of confidentiality and  the  medical staff are  seen to be independent from management;

The testing  facilities are  integrated into other  services  so that  employees using them cannot be identified  by others;  and

There exists some ‘benefit’ for the  employee; for example, they will be able to enrol in a treatment programme.




Checklist: Implementation guidelines on  HIV testing, confidentiality and disclosure


Ensure policies  and practices within the  workplace protect the  rights of employees;

Ensure that  HIV testing  services  are  confidential;

Ensure that  promoting the  benefits of voluntary HIV testing  and counselling form part  of the  HIV/AIDS awareness programmes;

Encourage persons openly  living with HIV or AIDS to conduct or participate in education, prevention and awareness programmes;

Encourage the  development of support groups for employees living with HIV/AIDS;

Ensure that  persons who are  open about their HIV or AIDS status  are  not unfairly discriminated against or stigmatised.




Research shows that  a workplace in which a number of HIV positive persons are  open about their HIV status  generally has  the  following characteristics:


HIV positive employees are  not discriminated against;

Treatment programmes are  offered to HIV positive employees;

Positive’ images of HIV positive employees are  created in HIV/AIDS awareness and prevention programmes;

Steps  are  taken against persons who unfairly discriminate against HIV positive employees; and

Management openly  supports HIV/AIDS and the  workplace initiatives.


Roles and responsibilities


Trade unions and employees:


Ensure that  employers are  only undertaking HIV testing  in terms  of the  Employment Equity Act and the  Code;

Assist employees to take up grievances where  breaches of confidentiality have occurred; and

Support  efforts of members to be open about their HIV status  or about the  HIV status  of family members.


Employers and  employer ’s organisations:



Ensuring HIV testing  practices are  lawful;

Developing and co-ordinating protocols and policies  on HIV testing,  confidentiality and  disclosure;

Allocating  resources towards  voluntary HIV testing  and counselling programmes;

Encouraging other  employers to embark on voluntary HIV testing  and counselling programmes  through raising such  issues at employer organisation meetings.

Small  businesses and the  informal sector


Linking with voluntary counselling and testing  resources within the  community, and referring employees to such services  if they are  not available at the  workplace.


2.3  Promoting a safe working  environment



The Code provides that:



every employer is obliged to provide and maintain, as far as reasonably practicable, a workplace that  is safe  and without risk to the  health of its employees;

although the  risk of HIV transmission  in the  workplace is minimal,  occupational accidents involving bodily fluids may occur, and therefore, every workplace should  ensure that  it complies with provisions of the  Occupational Health and Safety Act, including the  Regulations on Hazardous Biological Agents.  That workplace policy should  deal with, amongst others:


(i) the  risk, if any,  of occupational transmission  within the  particular workplace;

(ii) appropriate training, awareness, education on the  use  of universal infection  control  measures so as to identify, deal with and reduce the  risk of HIV transmission  in the  workplace; and

(iii) the  procedure to be followed  in applying for compensation for occupational infection.



2.3.1 Legal framework for promoting a safe working  environment



Common law



In terms  of our common law, every employer is obliged to take reasonable care of the  health and safety  of employees in the  work place.


Occupational Health and Safety  Act, No. 85 of 1993 (OHSA)



The Act covers all employees, except those in the  mining  industry, who fall under the  Mine Health and Safety Act 29 of

1996.   In terms  of OHSA and the  Mine Health and Safety Act, an  employer must  provide and maintain as far as is reasonably practicable, a working environment that  is safe  and without risk to the  health of its employees.  These general provisions apply equally  to the  situation  of HIV and AIDS.



What  is meant by ‘reasonably practicable’?



The Act defines reasonably practicable as having  regard to:

The severity and scope of the  hazard or risk;

The state of knowledge reasonably available concerning the  hazard or risk and any  means of removing or mitigating the  hazard or risk;

The availability and suitability of means to remove the  hazard or risk; and

The cost  of removing or mitigating the  hazard or risk in relation  to benefits derived there  from.




Regulations for Hazardous Biological Agents



The Regulations set out measures for dealing with hazardous biological agents, including HIV, which may  create a hazard to human health, in the  workplace. Annexure  C to the  Regulations sets out Standard Precautions to be followed  for the  prevention and control  of HIV/AIDS.


2.3.2. Defining  a safe workplace



The Code does not encourage measures aimed at identifying, isolating or possibly excluding employees living with

HIV/AIDS as a means of ensuring  a safe  work place. Rather, it recommends an  approach based on:



the  assumption that  any  employee may  be potentially  infected with HIV; and

the  management of possible risks of HIV transmission  through infection  control  measures.



Items 8.2(i) – (vii) and section 9.2 (i) and (ii) of the  Code, it is recommended that  all organisations take the  following steps:


Identify  the  risk of occupational transmission



Each  organisation should  assess its environment and conditions to identify the  risk, if any,  of occupational transmission of HIV. Section  6 of the  Regulations for Hazardous Biological Agents  provides that  all affected  environments should conduct a risk assessment.


Occupational accidents involving body fluids may  occur in a variety of work environments, and not simply health related or research laboratory environments. Section  2(1) of the  Regulations for Hazardous Biological Agents  provides that  the  Regulations should  apply in environments that  deliberately produce, process, use,  handle, store or transport  a hazardous biological agent (HBA), such  as HIV; and also  in any  environment in which an  accident involving blood or body fluids may  expose a person to HIV, and such  an  accident could occur in a variety of workplaces.


Appropriate training, awareness and education



Employers  and employees should  receive training, awareness and education on the  use  of universal infection  control measures so as to identify, deal with and reduce the  risk of HIV transmission  in the  workplace.


Providing  appropriate equipment and materials


Employers  should  ensure that  appropriate equipment and materials are  available to protect employees from risk of exposure to HIV, and should  implement universal infection  control  procedures.



The Standard Precautions for preventing and controlling  HIV/AIDS set out in Annexure  C of the  Regulations for

Hazardous Biological Agents  include:



Hand  washing  after  touching blood, body fluids, secretions, excretions and contaminated items,  whether gloves are  worn or not;

Wearing  of gloves  when  touching blood, body fluids, secretions, excretions and contaminated items,  or before touching mucous membranes and non-intact skin

Wearing  of masks,  eye  protection or a face shield to protect mucous membranes of the  eyes, nose, and mouth during procedures and activities that  are  likely to generate splashes or sprays of blood or body fluids, secretions and excretions;

Measures for handling of patient-care equipment soiled  with blood, body fluids, secretions and excretions, and for the  provision and disposal of disposable  syringes;

Measures for general environmental control,  such  as routine  care and cleaning of environmental surfaces;

Measures for handling, transport  and processing of used linen soiled  with blood and body fluids, secretions and excretions in a manner that  prevents contamination;

Measures to prevent injuries when  handling, cleaning and disposing of needles, scalpels and other  sharp instruments;

Use of mouthpieces, resuscitation bags or other  ventilation  devices as an  alternative method to mouth-to-mouth resuscitation; and

Isolation of patients who either contaminate the  environment or cannot be expected to assist in maintaining appropriate personal hygiene or personal control.


Some of the  measures listed above apply specifically to the  situation  of patient care in a typical  health care environment. However,  the  general principles  relating  to standard precautions should  be adapted to suit each workplace.

Management of occupational exposure to HIV



The Department of Health’s Guidelines recommend that  the  following steps  be taken in the  event of an  occupational exposure to HIV:




Immediate infection  control:  for all exposures, immediately clean the  affected area with an  antiseptic agent and water.

Evaluate the  exposure: assess the  nature of the  incident and whether it warrants  the  provision of post-exposure prophylaxis to the  affected person.

Determine the  HIV status  of the  exposure source:  take various steps  to identify the  HIV status  of the  ‘source’ person involved  in the  occupational incident, such  as checking existing medical records to determine whether HIV status is known, requesting voluntary HIV testing  with pre-and post-test counselling, or requesting a doctor to provide a clinical diagnosis of the  patient.

Provision of post-exposure prophylaxis:  provide post-exposure prophylaxis,  with ongoing HIV testing  at regular

intervals, in the  case of high-risk exposures.

HIV/AIDS Policy Guidelines, January  2000




The Code suggests that  employers do  not need Labour Court authorisation to provide HIV testing  at the  request of an employee following an  occupational accident. However,  in a recent decision by the  Labour Court in Joy Mining

v NUMSA & Others (2002) 4 BLLR 372 (LC) it appears that  the  Court disagreed with the  approach of the  Code which stated that  HIV testing  at the  request of an  employee in specified circumstances, including testing  after  an occupational accident is ‘permissible’.  In the  light of this it is advisable for an  employer to apply to the  Labour Court to authorise all HIV testing.


Where the  ‘source person’  refuses  to take an  HIV test, the  Department of Health recommends that:



Where an  existing blood sample is available, an  HIV test may  be conducted on that  sample without the  consent of the  ‘source person’;

Where there  is no existing blood sample, the  ‘source person’  cannot be compelled to take an  HIV test, and the  risk of HIV transmission  will need to be assessed without knowledge of the  source person’s  HIV status.


The Code further requires  that  employers take reasonable steps  to help  employees with compensation claims, including:


Providing information on the  procedures for a compensation claim.

Helping to collect the  information needed to prove  occupational infection  with HIV.



Reporting of all accidents



Organisations should  provide for adequate reporting  of all occupational accidents involving body fluids. Reporting of accidents is important for gathering information for monitoring and evaluation of the  risk of occupational  transmission of HIV within your particular working environment, as well as for purposes of assisting employees’ claim compensation for occupational HIV infection.


Monitoring occupational exposure



Organisations should  ensure that  adequate monitoring of all occupational exposure to HIV takes  place. This should include monitoring the  nature and extent  of occupational incidents, the  steps  that  were  taken following such incidents, as well as ongoing medical evaluation of affected employees if necessary.

2.3.3 Key issues  on  promoting a safe working  environment



Common problems



A common, and misguided response to health and safety  is the  idea that  the  identification, and possible exclusion  of people living with HIV/AIDS from particular working environments will promote a safe  workplace;

Irrational fears  exist regarding occupational transmission  of HIV and employee fears  of working with other employees living with HIV/AIDS need to be minimised;

Health and safety  in the  context of HIV and AIDS requires  more than  simply providing  materials and equipment for dealing with occupational incidents. It requires  clear policy guidelines on the  procedures to be followed  in the event of an  occupational accident, as well as education and training for all employers and employees.


Some main issues  for trade unions and employees:



Ensuring health and safety  measures are  in place;

Negotiating for employers to provide access  to PEP following an  occupational accident; and

Access to adequate compensation for infected employees.




Some main issues  for employers:



Reducing the  number of occupational accidents; and

Minimising workplace disruptions following an  occupational accident.



2.3.4 Implementation guidelines on  promoting a safe workplace



Why is health and safety important?



All employers are  obliged to provide a safe  working environment. In the  context of HIV and AIDS, the  creation of policies  and procedures to reduce occupational exposures to HIV is furthermore an  important mechanism in dispelling  irrational fears  and prejudices against employees known to be living with HIV and AIDS.


Why is compensation for occupational HIV infection important?



Employees who become infected with HIV as a result of carrying  out their work duties  are  entitled  to be compensated. Compensation can assist the  employees and their dependants to deal with the  economic impact of HIV and AIDS on a family.




Checklist: Health and safety policies



A clear definition of the  types  of occupational incidents which necessitate the  use  of HIV prevention guidelines created;

Measures to be taken to prevent the  risk of occupational exposures to HIV, and procedures to be followed  in handling occupational exposure to HIV developed;

Programmes to create awareness and to conduct education and training for all employees on measures to reduce occupational exposures, as well as universal infection  control  measures in the  event of an  occupational exposure occurring; and

The provision of appropriate equipment and materials to implement universal infection  control  in place.

Provision for information and services  to be offered to employees involved  in an  occupational accident which may  expose them to HIV developed and communicated to all staff;

Reporting procedures to be followed  in the  event of any  occupational exposure to HIV provided;

Provision for ongoing medical  monitoring of affected employees.

University of the  Western Cape HIV/AIDS Policy: Risk Reduction

"The University has  various departments in the  health care, clinical and biological sciences fields (e.g.  campus

health, dentistry, clinical departments in the  Community and Health Sciences faculty). Employees and students working in these fields face higher  risk of accidents that  can lead to HIV infection. HIV infection  may  be regarded as an  ‘accident’ as defined in the  Compensation for Occupational Injuries and Diseases Act, No 13 of 1993  (COID), provided that  the  employee/student acquires the  infection  as a result of an  incident which arose out of, and in the course of his/her employment or studies  at the  university, and provided that  the  date, place and circumstances of such  an  incident are  ascertainable. The university will provide HIV prophylaxis in the  form of anti-retrovirals where clinically appropriate in cases of potential exposure to HIV and when  these are  not provided by the  State  medical services  as a result of:


Injuries or contact with contaminated  materials that  occur in the  line of duty or study on campus or at an approved off-campus site, and are  officially reported. Incidents of this nature must  be reported at the  earliest opportunity to the  Safety and Health Officer (or if not available, the  Chief Fire Officer);

Rape or assault that  occurs on campus.


All employees and students of the  university should  implement universal precautions to effectively  eliminate the  risk of transmission  of all blood-borne pathogens, including HIV, in the  university. The university undertakes to educate all students and staff in this regard and first aid  instructions regarding the  general precautions that  need to be followed when  dealing with blood and bodily fluids will be prominently displayed in all relevant working areas."


Draft UWC HIV/AIDS Policy, March 2001




Checklist: Do’s and don’ts



Take reasonable steps  to create a safe  and healthy workplace.

Do report  all incidents involving blood or body fluids.

Do deal with concrete issues in detail,  such  as who will pay  for HIV testing  services, where  will the  HIV testing services  be administered, who will conduct pre-  and post-test counselling, when  will the  HIV testing  take place, how will the  HIV testing  take place etc.

Don’t assume you know who is living with HIV/AIDS in a situation  of occupational exposure;

Don’t attempt to identify and isolate  employees living with HIV/AIDS; and

Don’t force  an  affected employee to take an  HIV test, but do  explain  the  implications this decision may  have for them in terms  of personal health and compensation.


Roles and responsibilities





Developing appropriate and effective policy guidelines, accompanied by all necessary support services;

Training and educating employees on the  use  of health and safety  guidelines;

Reporting and monitoring all occupational incidents in the  workplace.



Employers’  organisations


Forming partnerships with government where  necessary, to ensure that  all work environments have access to support services, such  as protective equipment,  counselling services, male and female condoms etc. to implement risk reduction in the  workplace.


Individual employees


Minimising occupational exposures to HIV by following safety  guidelines;

Using infection  control  measures in the  event of an  occupational exposure;

Reporting all incidents that  may  potentially  expose any  person to HIV.



Trade unions and employees



Creating an  awareness of the  importance of health and safety  in the  context of HIV and AIDS, and in dispelling myths, fears  and prejudices relating  to the  risk of HIV transmission  within the  working environment;

Education and on the  procedures to be followed  in the  event of an  occupational exposure;

Protecting the  right of all affected employees to health and safety,  compensation, HIV testing  only with voluntary and informed consent and pre-  and post-test counselling, and confidentiality, is protected.



Minimising  fears and prejudices


"It is the  responsibility of the  company in conjunction with trade unions / associations to ensure that  all employees are educated in and are  in the  possession of facts  relating  to the  transmission  of HIV/AIDS – this will help  to minimise discrimination and  irrational fears"

Impala Platinum  Limited  HIV/AIDS Policy


Social  partners



Social partners should  pool  resources and skills in order  to facilitate access to:



Updated medical  information and guidelines on managing occupational exposures to HIV, including issues such as post-exposure prophylaxis and different  types  of HIV tests that  may  be administered;

Awareness, education and training on various aspects of health and safety  in the  context of HIV/AIDS, including implementing universal infection  control  procedures, training of HIV counsellors, administering HIV tests and the rights of employees to health, safety  and compensation in the  context of occupational exposure to HIV;

Useful media on HIV/AIDS health and safety  issues; and

Support  services, including access to gloves,  barrier methods such  as condoms, information services, and confidential counselling and testing  services  for affected employees.


2.4  Compensation for occupational infection with HIV



Item 9 of the  Code provides



that  an  employee may  be compensated if he  or she  becomes infected with HIV as a result of an  occupational incident, in terms  of the  Compensation for Occupational Injuries and Diseases Act;

that  employers should  take reasonable steps  to assist employees with the  application for benefits, including: (i) providing  information to affected employees on the  procedures that  will need to be followed  in order  to

qualify for a compensation claim;  and.

(ii) Assisting with the  collection of information which will assist with proving that  the  employee were  occupationally exposed to HIV infected blood

Occupational exposure should  be dealt with in terms  of the  Compensation for Occupational Injuries and Diseases Act. Employers  should  ensure that  they comply with the  provision of this Act and any  other  procedure or guideline issued  in terms  thereof.





Employers  have a legal  duty to create a safe, working environment.

The risk of occupational transmission  of HIV through casual contact is minimal.

Since reasonably simple,  cheap and effective steps  can be taken to reduce the  risk of occupational infection  of HIV, employers are  obliged to take such  steps  in order  to create a working environment that  promotes the  health and safety  of all employees.

Creating a safe  work environment does not require  identifying, removing or isolating employees identified  to be living with HIV/AIDS.

Employees who become infected with HIV as a result of an  occupational accident are  entitled  to compensation and employers should  take reasonable steps  to assist them in this regard.

In order  to claim compensation, employees will need to prove  that  their HIV infection  is due to an  occupational incident or accident.


2.4.1 Legal framework for compensation for occupational infection



Compensation for Occupational Injuries and Diseases Act, No. 130  of 1993



Section  22(1) of the  Act provides that  an  employee can get  compensation if he  or she  is involved  in an  occupational accident causing injury or death, while carrying  out work duties.  Section  65(1) of the  Act also  provides that  an employee is entitled  to compensation if the  employee contracts a disease while carrying  out work duties.  Where the disease is a scheduled ‘occupational disease’ in terms  of the  Act, then  it is presumed that  the  disease was

contracted as a result of the  employee’s employment. However,  where  the  disease is not a ‘scheduled occupational disease’ (as in the  case of HIV/AIDS), the  employee will need to prove  that  he  or she  contracted the  disease as a result of his or her employment.


2.4.2 Defining  compensation for occupational infection



Detailing steps that must  be taken following  an occupational accident and steps to assist  with compensation


Each  organisation should  ensure that  they have policy guidelines and procedures that  detail  the  steps  that  must  be taken following an  occupational accident.


These guidelines are  important for various reasons:



Steps  can be taken following an  occupational incident to assist in reducing the  risk of HIV transmission  (such  as offering post-exposure  prophylaxis);

Steps  can be taken (such  as counselling and HIV testing) to help  affected employees to deal with the  possible consequences of HIV infection;

Steps  can be taken to assist an  employee who becomes infected with HIV to prove  a claim for compensation for occupational infection  with HIV.



HIV/AIDS claims procedure


An employee who becomes infected with HIV as a result of an  occupational incident will need to prove  to the

Compensation Fund that  the  HIV infection  arose out of and in the  course of his or her employment.



The Compensation Fund has  indicated that  they would require  proof  that  at the  time  of the  accident the  employee was HIV negative, that  the  other  person was HIV positive, and that  the  affected employee subsequently became HIV positive.


Based on these requirements, the  following are  generally recognised as appropriate steps  to be taken:



Complete a report  of the  incident or accident leading to an  occupational exposure to HIV;

Request that  the  affected employee take an  HIV test, to determine his or her HIV status  at the  time  of the  incident, which test should  be HIV negative;

Request that  the  ‘source employee’ take an  HIV test to determine his or her HIV status  at the  time  of the  incident, which test should  be HIV positive;

Where the  ‘source employee’ refuses  to take an  HIV test, record this information and any  steps  to counsel them on the  importance of the  test; and

Request that  the  claimant employee take further HIV tests at intervals of 3-6 weeks,  12 weeks  and 6 months to determine whether the  employee has  seroconverted to HIV positive.

2.4.3 Key issues  relating to compensation for occupational infection



An employee who becomes occupationally infected with HIV needs to prove  that  the  HIV infection  is work-related, to claim compensation. However,  proof  is difficult in most  situations,  and particularly in situations  where  the  ‘source person’  refuses  to take an  HIV test.

Compensation for HIV exposure should  be dealt with in terms  of the  Compensation for Occupational Injuries and

Diseases Act

Employers  need to be directed to the  relevant Compensation Authority

Employers  should  ensure that  they comply with the  provisions of the  Compensation for Occupational Injuries and

Diseases Act and any  procedure or guideline issued  in terms  thereof.



Some main issues  for trade unions and employees:



Ensuring health and safety  measures are  in place;

Negotiating for employers to provide access  to PEP following an  occupational accident; and

Access to adequate compensation for infected employees.



Some main issues  for employers:



Reducing the  number of occupational accidents;

Minimising workplace disruptions following an  occupational accident; and

Taking reasonable steps  to assist employees with the  application of benefits including:

(i) providing  information to affected employees on the  procedures that  will need to be followed  in order  to qualify for a compensation claim;  and

(ii) assisting with the  collection of information which will assist with proving that  the  employees were occupationally exposed to HIV infected blood.


2.4.4. Implementation guidelines on  compensation for occupational infection



Why is compensation for occupational HIV infection important?



Employees who become infected with HIV as a result of carrying  out their work duties  are  entitled  to be compensated. Compensation can assist the  employees and their dependants to deal with the  economic impact of HIV and AIDS on a family.




Checklist: Compensation procedures



All incidents which potentially  involve an  occupational exposure to HIV being reported;

Information  given  to the  affected employee on the  possibility of exposure to HIV as well as the  possibility of claiming compensation in the  event of an  occupational exposure;

Access provided to voluntary HIV testing  services, on an  ongoing basis  where  necessary, for all affected employees;

Education, awareness and training programmes for key support staff on the  processes and procedures to be followed  in the  event of an  occupational exposure to HIV;

Training programmes for occupational health care workers, if applicable, on the  HIV testing  procedures to be followed  in the  event of an  occupational exposure to HIV; and

Ensuring the  availability of, or access to voluntary HIV counselling and testing  services.

Roles and responsibilities



Social  Partners



Social partners should  pool  resources and skills in order  to facilitate access to:



Updated medical  information and guidelines on managing occupational exposures to HIV, including issues such as post-exposure prophylaxis and different  types  of HIV tests that  may  be administered;

Awareness, education and training on various aspects of health and safety  in the  context of HIV/AIDS, including implementing universal infection  control  procedures, training of HIV counsellors, administering HIV tests and the rights of employees to health, safety  and compensation in the  context of occupational exposure to HIV;

Useful media on HIV/AIDS health and safety  issues; and

Support  services, including access to gloves,  barrier methods such  as condoms, information services, and confidential counselling and testing  services  for affected employees.


2.5  Employee benefits



The Code of Good Practice on Key Aspects of HIV/AIDS and Employment prohibits unfair discrimination in the allocation of employee benefits, such  as death benefits, disability benefits, pensions, provident funds and retirement funds,  so as to ensure that  employees living with HIV/AIDS are  provided with the  same benefits as employees with other  comparable life threatening illnesses.


Item 10 of the  Code provides that  employees with HIV or AIDS may  not be unfairly discriminated against in the allocation of employee benefits, and should  be treated like any  other  employee with a comparable life threatening illness with regard to access to benefits.


Item 10.3  of the  Code contains an  express  prohibition with regard to medical schemes and prohibits employers providing  medical schemes that  unfairly discriminate on the  basis  of HIV and AIDS.


Item 10.3  of the  Code furthermore provides that  information regarding HIV status  or AIDS obtained by benefit schemes should  be kept confidential.


Item 7.1.4  of the  Code recommends that,  given  the  prohibition on HIV testing  of an  employee,  employers should approach the  Labour Court for authorisation in the  event that  they wish to conduct HIV testing  as an  admission requirement for employee benefit schemes.




Employees with HIV/AIDS are  entitled  to have access to employee benefits. Benefit schemes should  treat employees with HIV/AIDS in the  same way as employees with other  life-threatening illnesses.

Employees may  not be required to take an  HIV test as an  admission requirement for employee benefit schemes. Labour Court authorisation should  be sought in order  to conduct HIV testing  in this circumstance.

Employers  may  not use  information on an  employee’s HIV status  from an  employee benefit scheme, to unfairly discriminate against that  employee.

Medical schemes must  offer minimum benefits, as prescribed from time  to time  by the  Minister, to employees living with HIV/AIDS.


2.5.1 Legal framework relating to employee benefits



Constitution of the  Republic of South  Africa Act, No. 108  of 1996



Section  9 of the  Constitution  prohibits both  the  State  and any  person from unfairly discriminating against another person on various grounds. Although HIV/AIDS is not a listed ground for non-discrimination, this would not prevent our Constitutional Court from finding that  any  action that  discriminates on the  basis  of a person’s  HIV status,  or AIDS, is unfair discrimination, as was done in Hoffmann v South African Airways.

The Constitution  does provide for the  limitation of certain rights, provided that  rights are  limited in accordance with the guidelines set out in section 36: the  ‘limitation clause’. In terms  of this clause, a right may  only be limited by a law of general application that  is reasonable and justifiable.


In effect, this means that  laws governing employee benefits, such  as the  Pensions  Funds Act and the  Medical Schemes Act, are  bound by the  constitutional prohibition against unfair discrimination. Any provisions in these laws which differentiate between persons must  be deemed to be reasonable and justifiable in terms  of the  Constitution  in order  not to be found  to be discriminatory.


Employment Equity Act, No. 55 of 1998



The Employment Equity Act also  prohibits unfair discrimination on the  basis  of HIV status  in all employment policies  and practices. Section  1 of the  Act defines employment policies  and practices, and includes:


"Remuneration, employment benefits and terms  and conditions of employment".



Medical and HIV testing  of an  employee is no longer  permitted, unless justified, in terms  of the  Act. Section  7(1) says that  medical testing  of an  employee is prohibited, unless it is justifiable in the  light of various factors, including "the fair distribution of employee benefits".  Section  7(2) of the  Employment Equity Act also  prohibits HIV testing  of an

employee, unless Labour Court authorisation has  been obtained for such  HIV testing.



In effect this means that  in the  event that  a company or organisation wishes to conduct HIV testing  as an  admission requirement for an  employee benefit scheme, they would need to approach the  Labour Court and set out justification for such  testing,  in order  to obtain authorisation to do  so.


Medical Schemes Act, No. 131  of 1998



Section  24(e) of the  Medical Schemes Act provides that  a medical scheme, in order  to be registered, may  not unfairly discriminate directly or indirectly against any  person on one or more arbitrary grounds including "state  of health".  Section  29(3) of the  Act prohibits medical schemes from providing  for the  exclusion  of any  applicant  or dependant of an  applicant. This means that  medical schemes may  no longer  unfairly discriminate against, or deny medical coverage, to people living with HIV/AIDS.  Medical schemes are  obliged to make provision in their rules for minimum benefits, as prescribed by the  Minister in terms  of section 67 of the  Act.




Minimum benefits for HIV and AIDS


Section  67(g) of the  Medical Schemes Act gives the  Minister the  power  to enact  regulations relating  to:



"The prescribed scope and level of minimum benefits to which members and their registered dependants  shall be entitled  to under the  rules of a medical scheme".


In January 2000  the  Minister of Health enacted Regulations relating  to minimum benefits for HIV/AIDS care on medical schemes. The Regulations stipulate that  schemes must  provide for the  following minimum benefits:


Treatment for HIV-related opportunistic infections;  and costs  of hospitalisation.



The Regulations do  not provide for anti-retroviral treatment as a minimum benefit relating  to HIV/AIDS care.




2.5.2 Defining  the  provisions on  employee benefits



Defining unfair discrimination in relation  to employee benefits is difficult. Many benefit schemes would simply argue that  it is not cost-effective to offer cover to people living with HIV/AIDS, and therefore that  discriminating or offering different  benefits to employees with HIV and AIDS is not unfair discrimination.

What  is unfair  discrimination?



Our Courts have not considered whether the  provision of limited benefits to employees with HIV or AIDS, and employees with other  similar conditions, is unfair discrimination. If they were  called upon to do  so, our Constitutional Court would consider factors  like:


whether the  different  treatment is unfair (looking at issues such  as the  impact it has  on the  dignity of the  persons being discriminated against);

whether the  unfair discrimination is reasonable and justifiable, in terms  of the  constitutional limitation clause.



A useful test which the  Courts could consider is whether HIV/AIDS is treated differently from any  other  life-threatening diseases.


The Code, other  legal  provisions and case law provide further guidance as to what  may  be considered unfair discrimination:


Medical schemes



The Medical Schemes Act says that  people living with HIV/AIDS:



should  not be denied access to medical schemes;

should  be provided with a minimum level of benefits.



So, while the  Medical Schemes Act does not provide for unlimited  benefits for people living with HIV/AIDS, it recognises that  certain standards should  apply in the  case of HIV/AIDS.


Other  funds



The Code states that  people living with HIV/AIDS should  at least  receive similar treatment to those with other comparable life-threatening illnesses. This indicates that  the  provision of benefits to employees living with HIV/AIDS should  be treated on a rational  basis.  Employees living with HIV/AIDS should  not be offered membership of differentiated funds.


Denial of access to schemes



It is clear that  an  employee living with HIV/AIDS may  not be denied access to employee benefit schemes outright. This would amount to unfair discrimination.




NS vs Old Mutual  (1999)



NS applied for a job with Old Mutual. She was asked to take an  HIV test on her application, and when  she  tested HIV

positive she  was excluded from membership of 3 employee  benefit schemes,  including the  medical aid  scheme.


NS resigned and the  matter was taken to the  Labour Court,  where  Old Mutual offered to settle  during the proceedings, which NS accepted.

AIDS Law Project Annual  Report  (2001)




What  is confidentiality in relation to employee benefits?



Where an  employee voluntarily discloses his or her HIV status  in terms  of an  employee benefit scheme (for example, in the  situation  where  a medical aid  scheme offers treatment for employees living with HIV/AIDS), this information must

be kept confidential.

2.5.3 Key issues  on  employee benefits



Common problems



Unlawful HIV testing  of job applicants and employees as a requirement for access to benefits;

Denying  access to employee benefits to job applicants and employees living with HIV/AIDS;

Offering different,  and often  sub-standard, benefits to employees living with HIV/AIDS; and

Breaches of the  confidential information on an  employee benefit scheme relating  to an  employee’s HIV status.



Some main issues  for trade unions and employees:



Ensuring the  wellness of members;

Ensuring that  members are  not excluded from employee benefit schemes, or provided with sub-standard employee benefits, on the  basis  of HIV and AIDS;

Keeping the  cost  of employee benefit funds and schemes low;

Participating in discussions and processes around the  restructuring  of employee benefit schemes and funds; and

Ensuring that  the  provisions of the  Labour Relations Act, as set out in the  Code of Good Practice on Disability, are met  in relation  to the  ill-health retirement of persons with HIV/AIDS.


Some main issues  for employers:



Complying with the  law relating  to HIV/AIDS and employee benefits;

Managing employees with HIV/AIDS so as to decrease illness and absenteeism, increase productivity  and reduce disability and death of employees;

Providing cost-effective and sustainable employee benefits for all employees; and

Managing the  impact that  HIV/AIDS will have on employee benefit schemes.



Some main issues  for trustees:



Complying with the  law relating  to HIV/AIDS and employee benefits; and

Ensuring that  the  interests of both  HIV positive and HIV negative members are  considered when  making decisions as to the  fair allocation of employee benefits.


Some main issues  for small  businesses:



Creating awareness amongst all employees of public  health care and welfare  services  available to assist employees infected with and affected by HIV/AIDS, such  as the  disability grant,  and health care services;

Ensuring that  where  they insure employee benefits, the  insurer does not adopt discriminatory  practices.



2.5.4 Implementation guidelines on  employee benefits



What steps  can you take to ensure non-discriminatory and sustainable employee benefits in the  context of HIV/AIDS?



Review existing employee benefit schemes to determine whether funds or schemes deny benefits to employees living with HIV/AIDS, or unfairly discriminate on the  basis  of HIV/AIDS, in terms  of benefits offered;

Commission an  actuarial impact analysis  to determine the  impact that  HIV/AIDS will have on existing employee benefit schemes and funds; and

Develop a holistic HIV/AIDS employee benefit strategy that  optimises management of the  impact of HIV/AIDS as well as prevention of further HIV infection.

Checklist: Do’s and don’ts



Do get  Labour Court authorisation for HIV testing  for employee benefit purposes;

Don’t deny or offer unfairly discriminatory  benefits to employees living with HIV/AIDS

Do provide employees with HIV/AIDS the  same level of cover as HIV negative employees where  death or disability is caused by accident or non-AIDS related conditions

Do provide employees with HIV/AIDS the  same level of cover for death or disability as a result of AIDS as that offered to other  similarly "impaired lives", e.g. members suffering from cancer

Ensure that  any  limitations or exclusions  of particular benefits to employees living with HIV/AIDS are  legal, reasonable and rationally justifiable (in terms  of actuarial principles,  and taking the  Constitutional right to non-discrimination into account).

Do ensure that  medical schemes provide the  stipulated minimum benefits for HIV/AIDS;

Do ensure that  an  employee’s medical  information on an  employee benefit fund or scheme is kept confidential;


Do understand and address the  impact of HIV/AIDS on your company ’s employee benefits, and develop a holistic strategy to manage HIV/AIDS and employee benefits.




Roles and responsibilities



Employers and employers’ organisations



Funding  a thorough review and analysis  of all employee benefit funds and schemes, in the  context of HIV and


Developing a non-discriminatory HIV/AIDS strategy based on the  principles  of management of HIV and AIDS, and prevention of further HIV infection.


Individual employees



Contributing to employee benefit schemes and funds;

Using and not abusing the  various benefits offered;

Taking an  active role in managing illness;

Adopting preventive health care measures to minimise  further HIV infection  and AIDS.



Trade unions



Establishing and administering pension, provident and medical  funds in a non-discriminatory and  sustainable way, in terms  of powers  given  to Bargaining  Councils  by S28 of the  Labour Relations Act.





Basing decisions on sound actuarial principles

Balancing the  interests of both  HIV positive and HIV negative members.



Social  partners



Business can provide technical expertise and assistance in the  process of reviewing,  analysing and restructuring employee benefit schemes to the  benefit of both  employer and employee;

Government can  provide information and media  on,  as well as access to, supplementary health care and welfare services  in the  event that  employee benefit schemes and funds are  not able to meet needs adequately; and

Labour can assist in the  vital role of educating members on the  importance of HIV/AIDS prevention, care and

support, to minimise  the  impact of HIV and AIDS on employee benefits.




2.6  Dismissals  and grievances



The Code provides that  employees may  not be unfairly dismissed. Furthermore, every workplace must  make provision for the  resolution  of HIV-related disputes through an  appropriate grievance procedure.





The Code deals with dismissals in item  11 where  it states that  employees with HIV/AIDS may  not be dismissed solely on the  basis  of their HIV status.  Furthermore, where  an  employee has  become too  ill to perform their current  work, an employer is obliged to follow accepted guidelines regarding dismissal for incapacity before terminating an employee’s services, as set out in the  Code of Good Practice on Dismissal contained in Schedule 8 of the  Labour Relations Act.


Finally, the  Code provides that  employers should  ensure that  as far as possible, the  employee’s right to confidentiality regarding his or her HIV status  is maintained during any  incapacity proceedings. An employee cannot be compelled to undergo an  HIV test or to disclose his or her HIV status  as part  of such  proceedings unless the  Labour Court authorises such  a test.


Grievance procedures



The Code provides in item  12 that  employers should  ensure that  the  rights of employees with regard to HIV/AIDS, and the  remedies available to them in the  event of a breach of such  rights become integrated into existing grievance procedures. Furthermore, employers should  create an  awareness and understanding of the  grievance procedures and how employees can utilise them. Finally, employers should  develop special measures to ensure the confidentiality of the  complainant during such  proceedings, including ensuring  that  such  proceedings are  held  in private.


Key points



The following key points are  made in this section:



Employees have a legal  right not to be dismissed simply because they are  HIV positive.

Employees may  be dismissed if they lack capacity to perform the  key elements of their job. This must  be done in accordance with the  guidelines set out in the  Code of Good Practice on Dismissals.

Employers  must  deal with HIV related grievances in an  efficient  and effective manner in order  to manage HIV/AIDS

in the  workplace effectively.

Workplaces which do  not address issues relating  to unfair dismissals and HIV/AIDS related grievances undermine and reduce the  effectiveness of HIV/AIDS programmes as this re-enforces myths such  as "HIV positive employees are  not able to work productively".


2.6.1 Legal framework for dismissals and grievances



Constitution of the  Republic of South  Africa, Act No.108 of 1996



The Constitution  provides that  everyone is entitled  to ‘fair labour  practices’ in section 23. This means in this context that employees may  not be:


Unfairly dismissed; or

Denied the  opportunity to resolve  HIV/AIDS related disputes with co-workers  or their employer in a speedy and efficient  manner.

Promotion of Equality  and the  Prevention of Unfair Discrimination Act



This Act provides in section 11 that  no person may  be subject to harassment.  This is defined as "unwanted conduct which is persistent or serious and demeans, humiliates  or create a hostile or intimidating  environment or is calculated to induce submission by actual or threatened adverse consequences and which is related to a person’s  membership of a group identified  by one or more of the  prohibited grounds or a characteristic associated with that  group."  This means that  if a person is being harassed in the  workplace due to their HIV status  they may  be protected by this Act.


Employment Equity Act, No. 55 of 1998


Section  6(1) prohibits any  person from unfairly discriminating against any  employee based on "HIV status" in any employment policy or practice. This would include dismissing an  employee for being HIV positive.


Labour Relations Act, No. 66 of 1996


Section  185 of the  LRA every employee has  the  right not to be unfairly dismissed. A dismissal will only be fair if it is for a fair reason relating  to:

• Conduct;

Capacity;  or

The employer ’s operational requirements; and

Done  in accordance with a fair procedure.



Section  188(1)(a)(i) of the  LRA provides that  an  employer may  lawfully dismiss an  employee if that  employee is too  ill to continue working. The Code of Good Practice on Dismissal sets out substantive (fair reason) and procedural (process) guidelines that  must  be used when  dismissing an  employee for temporary or permanent incapacity. These include both  procedural and substantive requirements for a fair dismissal. It also  separates out temporary and permanent incapacity.


With permanent incapacity an  employer must  first try to:



Find alternatives;  or

Adapt the  work environment; or

Accommodate the  employee’s disability.



Code of Good Practice on  the  Employment of People with



Adapting existing facilities to make them more accessible;

Adapting existing equipment or acquiring new equipment including computer hardware and software;

Re-organising workstations;

Changing training and assessment materials and systems;

Re-structuring jobs so that  non-essential functions  are  re-assigned;

Adjusting working time  and leave;

Providing readers, sign language interpreters;  and

Providing specialised supervision,  training and support."


ILO, Code of Practice on  HIV/AIDS and the  World of Work:



Re-arrangement of working hours;

Access to special equipment;

Opportunities for additional rest breaks;

Time off for medical appointments;

Flexible sick leave;

Part-time  work; and

Return to work arrangements.

With temporary incapacity the  employer must  first try to:



Investigate the  extent  of the  incapacity; and

Investigate alternatives to dismissal, considering factors  of the  case such  as nature of the  job, period of absence, seriousness of illness or injury, possibility of a temporary replacement.


The following criteria may  be relevant when  determining whether an  incapacity dismissal is appropriate:


The nature of the  incapacity;

Whether  the  employee is capable of performing the  work;

The extent  to which the  employee is capable of performing the  work;

The extent  to which the  employee’s work duties  can be adapted;

The availability of alternative work;

The likelihood of recovery or improvement;

The effect of the  employee’s absence on the  employer ’s operations;

The size of the  business;

The effect of the  employee’s disability on the  welfare  and safety  of others;

The employee’s status;

Length of service;  and

Cause of the  incapacity.



There are  no legal  provisions on grievance procedures. The creating of an  effective grievance procedure is a matter that  is left to the  parties  to regulate through collective bargaining.


2.6.2 Defining  the  provisions on  dismissals and grievances






The Code prohibits the  dismissal of an  employee simply on the  basis  of his or her HIV status.  A dismissal is defined in the  Labour Relations Act in s 186(1)(a) as "termination of a contract of employment with or without notice".  It includes circumstances where  the  employee resigns because the  employer has  made the  employment  relationship "intolerable".


This does not mean that  an  employee living with HIV/AIDS may  not be dismissed. An employee living with HIV/AIDS may  be dismissed on the  basis  of misconduct, incapacity or operational requirements where  necessary. However, they may  not be dismissed simply because they are  living with HIV or AIDS.


The Code recognises that  there  may  be instances where  an  employee living with HIV/AIDS is no longer  able to perform his or her job functions  as a result of ill-health. In this situation,  a dismissal for incapacity on the  basis  of ill health may  be fair, but must  nevertheless be conducted in accordance with the  Code of Good Practice on Dismissal.


An employee’s HIV status  may  be known, and in this case the  Code provides that  where  such  an  employee is undergoing incapacity proceedings, the  employee’s HIV status  must  be kept confidential and should  not be disclosed outside of those proceedings.





A grievance procedure is an  internal process that  allows employees to raise issues or concerns for discussion  and resolution.


The Code provides that  employees should  be able to resolve  HIV/AIDS related disputes by using existing grievance procedures.


The Code further provides that  employers are  required to ensure that  grievance procedures are  confidential and do not result in the  disclosure of a person’s  HIV status.  This means that  if an  employee is required to disclose his or her HIV

status  in order  to effectively  deal with a grievance, the  information should  not be used outside of the  grievance proceedings.


2.6.3 Key issues  on  dismissals and grievances



Common problems



Dismissal once the  employer discovers the  employee is HIV positive.

Confidentiality  not being maintained during incapacity hearings; and

Employers  refusing to adapt, accommodate or find alternatives for incapacitated employees.

Co-workers, on becoming aware of an  employee’s HIV status,  make their work environment unpleasant or even intolerable;

Co-workers refusing to work with an  employee who has  disclosed their HIV status;  and

Disputes between supervisors and employees on sick leave allocation or how to accommodate an  HIV-related disability.




Case study



"In 1995,  a 38-year old unmarried woman approached the  ALP for advice. Ms. X was the  mother of four children and responsible for five dependants (one  of them being her own mother) and working as a domestic worker at a middle-class white family in Johannesburg for R30/day. She was responsible for the  usual  domestic work duties  in the  home of her employer as well as looking after  their 1-year  old son. After working there  for two months her employer informed her that  she  had to be tested to see if she  was healthy enough to care for the  child. In her statement, Ms. X says the  following: "I asked her if what  if they found  out I  am sick. She replied that  she  would help me because she  is also  a woman."


The employer ’s doctor tested Ms. X for HIV and spoke in English, which she  could not understand. The employer translated into Afrikaans, but Ms. X still did not grasp what  was being done to her. After some time,  Ms. X returned to the  doctor where  she  was given  a letter by the  receptionist. The employer opened the  letter and informed the client that  she  had AIDS. She was given  R400.00  to go  to hospital  and subsequently dismissed.

Richter  M, Preliminary Assumptions on the  Nature and  Extent of

Discrimination  Against PWA in South Africa, AIDS Law Project, 2001  at 30




Some main issues  for trade unions and employees:



How to monitor  dismissals;

Ensuring employees are  properly  represented at incapacity hearings;

Negotiating with employers to develop alternatives to dismissal when  employees become too  ill to continue in their current  jobs;

Ensuring migrant workers who are  dismissed for incapacity and who return to rural areas with few or no community based medical services  are  assisted in accessing home-based care and other  social  services;

Ensuring an  effective grievance procedure is negotiated through collective bargaining; and

Placing  pressure on the  employer to take HIV related grievances seriously.


Some main issues  for employers:


Ensuring that  the  workforce is able to work productively

Setting standards for appropriate behaviour within the  workplace, through ensuring  unfair dismissals do  not take place and that  grievances are  resolved at an  early stage;

Assisting vulnerable employees, particularly women to use  grievance procedures, since  research shows that women face hostility and aggression when  they disclose that  they are  HIV positive; and

Ensuring that  inappropriate behaviour towards  PWAs is not tolerated within the  workplace.

2.6.4 Implementation guidelines on  dismissals and grievances



Why is protecting employees from unfair  dismissals important?



Unfair dismissals due to HIV status  are  not only illegal but they undermine an  attempt to develop an  HIV/AIDS

programme in the  workplace as they send a message that:



Persons with Aids (PWA) are  not productive;

PWAs are  a threat  to workplace safety;  and

You can keep the  workplace "AIDS free" by dismissing workers with HIV/AIDS.



Why is resolving disputes related to HIV/AIDS important?



If disputes relating  to HIV/AIDS within the  workplace are  not resolved it leads to the  following problems:



It is difficult for persons living with HIV/AIDS (PLWAs) to be open about their HIV status;

It is difficult for PLWAs to be healthy and function  at their optimum level as they may  be facing stress from the reactions of co-workers  and supervisors; and

It affects the  productivity  of all workers as they are  focusing on the  ‘dispute’ instead of their core job functions.




"Violations of dignity have such  significant,  pervasive, and long-lasting effects that  injuries to individual or collective identity may  represent a thus far unrecognised pathogenic force  of destructive capacity towards  well-being  at least equal to the  capacity of viruses or bacteria."

Mann  J  "AIDS and  Human Rights: Where do  we  go  from here?" Health and  Human Rights Vol 3 NO 1 at 148




What  steps can you  take to prevent unfair  dismissals?



Develop clear guidelines on the  procedures that  must  be followed  in dismissals,  particularly dismissals for incapacity;

Ensure that  all managers and supervisors are  aware of the  law and how to apply it within the  particular workplace;

Make a clear policy statement on dismissals setting  out what  steps  the  company will take to adapt an  employees’

working environment, how it could accommodate ill employees and what  alternatives, if any,  exist.

Take corrective action against individuals who do  not follow the  law and company policy; and



Steps  that should be taken in effecting a dismissal for incapacity: Step  one:

Determine the  employee’s capacity to perform their core functions  by:



Requesting them to submit  to a medical examination; or

Asking them to attend an  interview about their health status.



Step  two:



Advise the  employee of their rights which include:



The right to representation at the  hearing;

The right to bring their own medical evidence (if available); and

The right to a confidential process.

Step  three:



Investigate the  possibility of adapting the  employee’s working environment, accommodating their disability or finding alternative work for them. Involve the  employee and their representative in these discussions.


Step  four:



Hold a hearing to determine the  employee’s capacity to perform their job functions.  Make a decision regarding their future employment.


Step  five:



If an  employee is dismissed, assist them to access any  employee benefits due to them and other  forms of community based support.


What  steps can you  take to deal with HIV related grievances?



Deal with any  dispute as quickly as possible;

Use ordinary grievance procedures but ensure that  all parties  are  protected by confidentiality clauses;

Give employees various options  for resolving the  dispute i.e. using the  set procedures, going  for joint counselling, moving to an  alternative position  within the  company, etc;

Where possible, offer to arrange for an  external  or outside facilitator  to assist with resolving the  dispute. This will help to ensure that  confidentiality is maintained;

If the  particular offender has  breached the  employee’s rights to privacy,  for example, advise them of their rights e.g., instituting a civil claim, etc; and

Integrate courses on attitudes and  discrimination into HIV/AIDS awareness programmes so that  all staff can begin to work through their own fears  and prejudices.


What  steps can you  take to promote the  use  of the  grievance procedures?



Ensure they are  well known within the  working environment;

Display the  procedures in general areas within the  workplace; and

Provide support to employees who try to resolve  disputes using these procedures. See  for example the  Code of Good Practice on Handling  Sexual Harassment Cases attached to the  Labour Relations Act for advice on how to deal with harassment issues as many similarities exist between such  disputes. A copy of this code may  be obtained from www.labour.gov.za




Checklist: Do’s and don’ts



Do listen to your employees

Don’t lower your expectation of the  employee simply because they have HIV or AIDS

Do develop policies  on dismissal for incapacity and make employees aware of policy and procedures;

Do negotiate and consult  on all forms of reasonable accommodation;

Don’t act unilaterally

Do maintain confidentiality regarding HIV status  during an  incapacity hearing; and

Do ensure flexible, confidential grievance procedures exist; and

Don’t treat  people with HIV or AIDS differently from others  unless this is related to the  reasonable accommodation of an  employee.

Lawyers for Human Rights handled a case in 1998  where  an  employee was being discriminated against on the  basis of her HIV status.  One  of the  solutions which was mooted during a conciliation of the  dispute was transferring the employee to another branch of the  company where  no one would know of her HIV status.

AIDS and  Human Rights Programme Lawyers for Human  Rights Annual  Report





3. Framework for managing HIV/AIDS in the  workplace



The Code of Good Practice on Key Aspects of HIV/AIDS and Employment contains guidelines for employers, employees and trade unions on the  management of HIV/AIDS in the  workplace. According to item  13 of the  Code:




The effective management of HIV/AIDS in the  workplace requires an integrated strategy that includes, amongst others, the  following  elements:


An understanding and assessment of the  impact of HIV/AIDS on  the  workplace; and

Long and short  term measures to deal with and reduce this impact, including:



- An HIV/AIDS policy for the  workplace;

- A prevention programme;

- A wellness programme; and

- Management strategies to deal with the  direct and indirect costs of HIV/AIDS.




Organisational HIV/AIDS responses should  have two main  focuses, one internal and the  other  external. The internal response refers to what  organisations can do  in response to HIV/AIDS in the  workplace; the  external  response refers to recognising and exploiting  the  comparative advantages of an  organisation to ‘make a difference’ to the  nature and course of the  epidemic within the  sector in which it operates.


The workplace response should  have four main  elements:



– A prevention strategy;

– A wellness strategy;

– A set of management strategies to deal with the  direct  and indirect  costs  of HIV/AIDS; and

– A partnership strategy.



It is important to note that  these elements are  interlinked – in particular, prevention activities and wellness management are  not independent of one another – rather  they form part  of a continuum of prevention and care.


The workplace response should  be underpinned by:



– An impact assessment to determine the  nature and extent  of the  problem;

– A policy framework;  and

– A monitoring and evaluation plan.



Mainstreaming HIV/AIDS is a fundamental requirement for workplace responses to be appropriate and sustainable.

Programmes must  be gender sensitive.



3.1  Principles underlying a comprehensive response to HIV/AIDS



Two general principles  should  inform all responses to HIV/AIDS in the  workplace:



Mainstreaming HIV/AIDS activities into the  core function  of the  organisation; and

Developing a gender sensitive programme.




Mainstreaming HIV/AIDS is increasingly acknowledged as the  optimal means to develop and implement a comprehensive response to HIV/AIDS. A mainstreamed response to HIV/AIDS is one in which there  is an  HIV/AIDS policy which is:


Linked to other  organisational policies;  and

Conceptualises the  organisation’s response in the  light of existing policies,  practices and programmes which:

– Integrates HIV/AIDS activities into other  programmes, e.g. staff induction; and

– Integrates HIV/AIDS activities into the  core functions  of the  organisation.



Gender specific response



It is accepted that  there  is a link between gender, inequality  and vulnerability to HIV/AIDS.  For example, gender dynamics in sexual  relationships place both  men and women at heightened risk of HIV infection:


There appears to be tolerance for male promiscuity  – thus placing them and their partners at greater risk of HIV


Likewise, it appears that  women are  placed  under pressure to exert little or no control  over their sexual  relationships

– thus again placing them at greater risk.

Both prevention and care programmes need to recognise gender differences and respond to such  issues.



Examples of gender specific activities



Promote understanding around the  ways in which gender stereotypes affect men and women, including discussions on the  different  ways in which girls and boys are  raised.

Support  efforts to promote gender equality  in the  workplace.

Promote greater understanding and acceptance of men who have sex with men.

Introduce programmes to reduce sexual  and domestic violence.

Promote discussions on alternative versions of masculinity.

Encourage men to take a more active role in providing  care for persons living with AIDS.

Develop prevention programmes which do  not just target men or women but assist with developing communication skills between the  sexes.

Introduce and promote use  of the  female condom.



3.2  Managing HIV/AIDS in the  workplace



Item 15.2.2  (xi) of the  Code recommends that  workplaces develop strategies to address direct  and indirect  costs associated with HIV/AIDS in the  workplace.


This requires  proactive management of the  epidemic by seeking to understand it, monitoring it and mitigating its impact as part  of every organisation’s response to the  HIV/AIDS epidemic.


The key strategies to manage the  epidemic are:



– To establish a structure  responsible for all aspects of the  workplace response;

– To collect and analyse data to inform integrated planning processes;

– To integrate HIV/AIDS into all steps  of skills development planning;

– To regularly check for compliance with labour  and other  legislation;  and

– To demonstrate leadership and management commitment for the  workplace HIV/AIDS response.



There is broad acceptance that  HIV/AIDS is having  and increasingly will have a significant  impact on the  workplace. Ideally HIV/AIDS should  be managed in the  same manner as other  long-term threats  to an  organisation.  This implies that  organisations should  have a management plan  to support their workplace HIV/AIDS response.  The following table is an  example of the  core objectives and actions that  could form the  basis  for a management plan.

Management Strategies


Objectives                                                      Actions


To create a mechanism to communicate on policy and programme  issues

(internally and externally)




Establish a representative AIDS Committee with official terms  of reference

Modify job descriptions to include roles relating  to the  workplace

HIV/AIDS responsibilities




To provide regular  reports  and advice to management




Communication and reporting

Mechanisms for communicating internally and externally

Identification of reporting  requirements




To understand the  epidemic:

- in the  workforce and the surrounding  community

- currently and in the  future




Analyse data received from risk and impact assessments conducted:

Profiles of the  workforce and the  community

A model of the  epidemic

Impact assessments – base-line and periodically thereafter




To facilitate budgetary provision and ensure financial accountability


To utilise this understanding for short and medium term  planning and budgeting




Analyse data received on direct  and indirect  costs  of:

Absenteeism and sick leave

Morbidity and reduced productivity

Replacement recruitment and retraining

Medical costs

Disability and ill-health retirement, pensions, dependent benefits and funeral  costs




To clarify all HR issues and ensure compliance with legislation




Review HR policies  and procedures, such  as:

Job  access and job security

Access to training and promotions

Confidentiality,  disclosure and protection against discrimination

Performance management

Reasonable accommodation for symptomatic employees

Skills succession planning

Disciplinary and grievance procedures

Employee benefits

And ensure in line with HIV/AIDS policy




To address socio-economic factors  which fuel the  epidemic within the  context of sustainable development




Examine  development plans  to ensure that  HIV/AIDS is considered




To ensure the  protection of human rights and compliance with labour legislation




Analyse policies  and procedures for legal  compliance




To provide leadership, and lead by example




Demonstrate commitment for the  policy and programme by:

Management and





To identify roles and  responsibilities in respect of the  policy and programme




Define the  HIV/AIDS-related responsibilities of:

• Management

Supervisors and team leaders


Health care workers







Peer educators



To facilitate on-going monitoring and periodic evaluation


Identify data sources for monitoring

Conduct on-going monitoring

Conduct periodic evaluation

Review policy at regular  intervals


The following  checklist can be used to review  the  management strategies component of a workplace HIV/AIDS

response and to identify  areas for future  or expanded action.


Management strategies checklist





Overall  assessment

Areas for Action











Structure to direct  the  strategies





Does  a standing structure  exist?

What is the  composition of the  structure? What is its mandate?


Planning  the  responce: including data collection, analysis  and development of long term  strategies





Who has  responsibility for planning the response?

With whom  do  they consult?

What is planned to address risk factors?

HIV/AIDS/STD/TB Policy Preliminary checklist


Management  issues

HR issues (recruitment, training) Prevention  programme (awareness, education)

Testing and counselling Confidentiality  and disclosure Medical issues (wellness, STD’s and infection  control)

Employee benefits





Does  the  policy cover all areas of a comprehensive response?

Does  the  policy cover all workplace programme elements?

How was the  policy developed? How has  the  policy been communicated?

Has the  policy been  revised/reviewed? What data is readily available?

Can it be used to monitor  trends? What other  data is needed for

meaningful monitoring?

Skills Plan





Have  critical positions been identified? Can a multi-skilling programme reduce

the  risk to production?

Employee benefits





Has the  impact of HIV/AIDS on employee benefits been considered? Have  benefits been reviewed to accommodate the impact?

Analysis of legal  obligations







Is the  organisation operating in

accordance with legislation  that  has

HIV/AIDS implications?


– By management

– By unions





What commitment is demonstrated  by

management and unions?

3.3  Implementation guidelines



Most of the  management strategies that  are  proposed in this document are  not new – rather  the  challenge is to integrate HIV/AIDS into existing and well-established management practices. The guidelines that  follow attempt to assist in this process.


Management strategies to deal with the  impact of HIV/AIDS in the  workplace



Management needs to implement a number of strategies to deal with the  impact of HIV/AIDS in the  workplace.  These include:


Creation of an  HIV/AIDS Committee

Development of a database of information to enhance planning

Development of an  HIV/AIDS policy

Succession planning strategies and skills development plans

Management of employee benefits

Compliance with legal  obligations

Demonstration of management commitment

Workplace HIV/AIDS prevention and wellness programmes

Monitoring and evaluation.



3.3.1 Creation of an HIV/AIDS committee



A committee should  be appointed consisting  of a committed group of nominated officials/employees with a clear mandate to develop, oversee, implement, monitor  and report  on the  workplace HIV/AIDS response.


An HIV/AIDS Committee should include representation from the  following  sectors:







– Women and people with disabilities;

– All departments and all levels;

– Employees who are  living with HIV/AIDS

– Trade union officials and shop  stewards; and

– People with relevant skills.




3.3.2 Development of a database of information to enhance planning



All organisations collect a range of data and information about  employees  and operations such  as the  number of deaths in service,  number of ill-health retirements, rates  of absenteeism etc.  Much  of this data can be used to generate a picture of the  epidemic in the  organisation, and will form part  of its impact assessment.


The following  three questions can assist  in evaluating the  data collected:


– Do we have the  information/data to measure the  impact of the  epidemic on  our organisation now?   If not, what  do  we need and where  do  we get  it?

– Do we have the  information/data to make future  predictions about the  epidemic and the  impact on  our organisation?  If not, what  do  we need and where  do  we get  it?

– What are  the  questions we should  be asking to enable us to integrate HIV/AIDS into our planning?

The aim  of the  organisation’s HIV/AIDS response is to integrate the  topic  of HIV/AIDS into all aspects of an  organisation’s planning process.  The following step-by-step planning process can lay the  foundation for sustained integrated planning.  At each step, it is critical to ensure full participation of key role players.   This, in turn, will lead to shared ownership  of the  plan.


Step  1: Analyse  factors that contribute to risk of HIV infection



Identify employees at risk or vulnerable to HIV infection

Identify factors  which put employers at risk of HIV infection

Identify and prioritise obstacles and opportunities for reducing HIV infection  amongst employees.



Step  2: Analyse  your response to HIV/AIDS



What prevention programmes (including  safer  sex promotion, reducing the  vulnerability of specific target groups and STD prevention and control) are  available to employees?

What treatment, care and support programmes (including  access to voluntary counselling and testing,  clinical management and home/community based care) are  available to employees?

What programmes are  in place to mitigate the  impact of HIV/AIDS (including  social  welfare  support and non-discrimination activities)?

What programmes are  effective?

What programmes are  not effective?

What programmes are  missing?



Step  3: Analyse  current and potential partners



Who is involved  in policy making?

Who is involved  in co-ordination?

Who is involved  in implementation?

Who provides technical input?

How do  they work together?

Who else  could become involved  in these activities?

How could they be recruited?

What are  the  optimal mechanisms for consultation, communication and collaboration?



Step  4: Planning



Set objectives in priority areas;

Develop action plans  to reach objectives;

Examine  each for acceptability, technical soundness, feasibility/affordability,  chance of succeeding and potential impact;

Indicate responsibilities;  and

Identify resources.



Srep  5: Monitoring and evaluation system



Define goals and objectives of the  response;

Determine achievement of the  objectives;

Formulate feedback mechanism;

Give feedback to role players  in the  organisation on the  impact of the  intervention  in the  workplace; and

Use monitoring and evaluation data to review the  impact of HIV/AIDS in the  workplace.



The complexity of the  planning process required will depend on factors  such  as the  size and structure  of an organisation.  Planning  could be done by an  organisation, by companies in an  area or group, or even by a sector.

3.3.3 Development of an HIV/AIDS policy



Item 15.1  of the  Code recommends that  every workplace develop an  HIV/AIDS policy in order  to ensure that employees affected by HIV/AIDS are  not unfairly discriminated against in employment policies  and practices.


Policies should  be developed consultatively; should  reflect  the  nature and needs of the  organisation; and should  be monitored and reviewed regularly.


According to the  code, the  policies  should  cover the  following:



An organisation’s position  on HIV/AIDS;

An outline on the  HIV/AIDS programme;

Details on employment policies;

Express standards of behaviour expected of all employers, employees and trade unions;

Grievance procedures;

Communication strategies;

Employee assistance programmes;

Roles and responsibilities of participating role players;  and

Monitoring and evaluation mechanisms.



A policy sets in place a framework  for an  organisation’s workplace HIV/AIDS response.  It must  have a clearly  stated goal and principles  that  define rights and responsibilities.   Time and effort invested in ensuring  that  the  workplace HIV/AIDS policy is developed in a consultative manner; is jointly owned; supported by operational guidelines and regularly monitored, is worth it.


Rationale for an organisation’s HIV/AIDS policy



The following are  significant  benefits to developing and adopting an  HIV/AIDS policy which:



Defines an  organisation’s position  on HIV/AIDS;

Sends  a strong  message that  HIV/AIDS is a serious issue in the  organisation;

Indicates commitment to dealing with HIV/AIDS;

Sets a foundation for the  HIV/AIDS programme;

Provides a framework  for consistency of practice;

Expresses standards of behaviour expected of employees, supervisors and management;

Sets standards for communication about HIV/AIDS; and

Let employees know what  assistance is available.



A workplace HIV/AIDS policy could take many different  forms including a comprehensive HIV/AIDS policy; a brief statement of intent referenced to other  organisational policies;  and an  integrated policy (e.g.  HIV/AIDS integrated within a terminal  illness policy or within a disability policy).


In addition, the  policy goals should  be clearly  stated, for example: "to minimise  the  impact of HIV/AIDS in the workplace", or "to manage the  impact of the  epidemic on infected employees and the  company operations".


A workplace policy should  include key principles  such  as confidentiality, non-discrimination and rights  and responsibilities.


Good practice example of an HIV/AIDS policy (adapted from the  project support group, Zimbabwe)


Principle 1: Promote non-discrimination and openness around HIV/AIDS.



Principle 2: Because AIDS is a preventable disease it makes sense to offer prevention education to all employees

and to specifically invest in targeting situations  of high risk.



Principle 3: AIDS prevention works – we can change  behaviour, but information alone is not enough to achieve this.

Behaviour  change is only possible if we reach solutions by developing our own responses.  People need to be taught skills to enable them to put the  information into practice.


Principle 4: Education needs to be complimented by supportive services.



Principle 5: AIDS programmes in the  workplace can help  control  the  epidemic and reduce impact on businesses.



Principle 6: Effective AIDS prevention yields enormous savings  in averted AIDS costs.



Principle 7: The most  powerful change agents are  our friends and peers.



Principle 8: The involvement of people living with HIV/AIDS is central to an  effective workplace programme.



Principle 9: AIDS programmes must  be simple,  specific, concrete and verifiable. Use core management principles (simplicity, focus,  precise, targets and strong  performance monitoring),  and explicit results chain (required inputs, outputs, outcomes and impacts).


Principle 10: Strategies and projects in areas of economic and social  development should  address poverty,  income inequality,  the  bargaining power  of women, housing, migrancy and so on,  will address the  underlying factors  which fuel the  epidemic.



Policy development process


Policy development should  follow the  seven-step process below:



Step  one:        Create an HIV/AIDS committee



Identify a senior person to lead the  process;

Develop the  terms  of reference for a Policy Task Team; and

Nominate representatives for the  Policy Task Team.


Step  two:            Develop committee’s capacity


Provide training for the  Policy Task Team on relevant HIV/AIDS facts, on the  impact of HIV/AIDS (particularly on workplace) and on the  terms  of reference.

Review past policy and programme – if in existence.



Step  three:       Gather information



Gather data/information:


About the  organisation;

About the  HIV/AIDS situation  in the  organisation;

About the  concerns/issues related to HIV/AIDS;

About other  workplace HIV/AIDS policies;  and

About research on HIV/AIDS and the  workplace.



Step  four:           Reach consensus


Reach consensus on:



The type  of policy (stand-alone, integrated, etc);

The goals of the  policy

Guiding  principles;  and

Elements  of the  policy.

Identify any  areas where  expertise is required (legal  and medical status).



Step  five:            Formulating the  policy



Develop a draft policy (with technical inputs where  required);

Establish a consultation process

Revise and finalise the  policy; and

Identify indicators by which to monitor  the  policy implementation.



Step  six:             Negotiate policy



The following should  be considered when  preparing to negotiate a workplace policy:



Identify the  issues that  need to be included within a policy;

Define what  objectives you want  to achieve through the  development of a policy;

Gather information to support your positions;

Develop a strategy; and

Reach agreement.



Step  seven:      Develop implementation strategy



Develop a strategy to launch and popularise the  policy;

Adopt  and launch the  policy formally;

Conduct public  relations  activities around the  policy; and

Conduct research to identify and address any  barriers to ownership  and implementation.



Good practice example of a generic company workplace

HIV/AIDS policy



1. Scope



This policy applies to all employees employed by the  company.



2. Objective



The objective of this policy is to ensure that  all employees of the  company are  kept informed about the  HIV/AIDS pandemic as well as to detail  the  steps  that  will be taken to protect both  the  company and the  employee against the  effects of this disease.  This will be achieved by:


Eliminating unfair discrimination in the  workplace;

Promoting  an  environment in which people living with HIV/AIDS in a structured manner;

Monitoring the  prevalence of HIV/AIDS in a structure  manner;

Developing proactive guidelines and programmes; and

Implementing HIV/AIDS awareness programmes aimed at providing  support and education.



3. Responsibility



Implementation of this policy is the  responsibility of all managers and supervisors,  as is the  continued dissemination of information about  HIV/AIDS to all employees.  It is however the  responsibility of employees to take appropriate action on being informed about HIV/AIDS, to protect themselves and their families and to seek  counselling in case of uncertainty.

4. Principals



The following principles  will be covered in the  HIV/AIDS policy:



i. AIDS awareness

Line management will be provided with all information pertaining to HIV/AIDS.  This is aimed at establishing a reservoir of information and knowledge that  will be available to all employees and which will better enable them to make informed decisions. This information will be updated from time  to time.


ii. Pre- employment testing

HIV testing  is not a pre-requisite for employment and pre-employment testing  will therefore not be conducted by the  company.


iii. Special circumstances requiring HIV testing

In the  case of persistent illness, an  employee may  be referred  for medical examination, and may  be required to undertake an  HIV test.   Any report  on the  employee’s state of health will only be divulged to the  company with the  employee’s consent in writing.


iv. Disclosure of HIV test results

HIV test results will not be disclosed to management without the  employee’s written consent and such disclosure will be treated as strictly confidential.  It is however the  employee’s prerogative to disclose such  test results to any  party he/she wishes to.

The employee reserves  the  right to disclose the  results of his/her HIV test at any  given  time. v. Pre-test counselling

Before an  employee undergoes HIV testing,  he/she will receive pre-test counselling.



vi. Post-test counselling

Following an  HIV test, each employee will receive post-test counselling.



vii. Discrimination

No employee may  be discriminated against based  on his/her HIV status.   Discrimination against HIV positive employees by fellow employees, based on their HIV status,  will not be condoned. Such action will render employees involved  subject to disciplinary action in accordance with the  company ’s disciplinary code and procedure.


viii. Protection against HIV infection  in the  workplace


HIV may  be transpired in a number of ways:



The exchange of body fluids, i.e. exposure to blood products or through sexual  conduct;

Through the  exchange of intravenous needles; and

From mother to unborn child.


Every employee must  take the  appropriate precautions when  faced with a situation  that  may  lead to the transmission  of HIV.


ix. Transparency


The company will adopt a consultative and transparent approach to the  management of HIV/AIDS.  This policy will be reviewed should  the  company ’s strategy or legislation  change.


x. Grievances



All grievances about issues related to HIV/AIDS will be handled according to the  standard policy that  exists within the  company to deal with complaints and grievances of employees.

xi. Access to training, promotion and benefits



An employee with HIV/AIDS will be expected to meet the  same performance requirements that  apply to other employees, with reasonable performance accommodation if necessary.  Reasonable accommodation refers to those steps  that  management will take regarding any  employee with a disability.  Reasonable accommodation may  include, but is not limited to, flexible or part-time working schedules, leave of absence, work restructuring  or reassignment.  HIV infected employees will be entitled  to the  same benefits as all other employees.


xii. Budget



A budget will be allocated to ensure that  all facets of the  programme are  implemented.



5. Implementation and monitoring



This policy will be reviewed on a regular  basis,  using the  following indicators:




Sick leave;

Early retirement; and

EAP referrals (treatment and counseling).




Good practice example of a public sector workplace HIV/AIDS




1. Preamble



The Department of (insert appropriate department’s name) acknowledges the  seriousness of the  HI/AIDS epidemic, seeks  to minimise  the  social,  economic and developmental consequences to the  Department and its staff; and commits itself to providing  resources and leadership to implement an  HIV/AIDS and STD Programme.


2. Principles



The Department affirms that:



The policy shall be developed and implemented in consultation with staff and their representatives;

Staff living with HIV/AIDS have the  same rights and obligations as all staff;

HIV status  shall not constitute a reason to preclude any  person from employment;

No staff shall be required to undergo HIV testing.   Where testing  is done at the  instance of the  employee, this will be with his/her informed consent and accompanied by counseling; and

Confidentiality  regarding the  HIV status  of any  member of staff shall be maintained at all times.



3. HIV/AIDS and STD programme in the  workplace



3.1.  Co-ordination and implementation



The Department shall appoint the  HIV/AIDS Programme Co-ordinator and Working group to:



Communicate the  policy to all staff;

Implement, monitor  and evaluate the  Department’s HIV/AIDS programme;

Advise management regarding programme implementation and progress;

Liaise with local  AIDS service  organisations and other  resources in the  community;

Create a supportive and  non-discriminatory working environment.

3.2.  Management of infected employees



HIV/AIDS shall be treated in the  same way as other  disabling or terminal  conditions.



3.3.  Programme components



The HIV/AIDS programme of the  Department shall provide all staff with access to:



Information, education and communication activities including small media materials and peer education;

Barrier methods, particularly male condoms;

Health Services  for the  appropriate management of STDs;

Treatment of opportunistic infections  for infected staff;

Testing and counseling services;

Personal  protective equipment for staff who may  potentially  be exposed to blood or blood products; and

Support  for both  infected and affected staff.



3.4  Planning



The Department shall conduct regular  impact analyses in order  to understand the  evolving  epidemic and how it will impact on the  future of the  Department as that  relates to its structure,  operations and functions.


3.5  Benefits



HIV infected staff are  entitled  to the  same benefits as all staff.



3.6  Budget



The Department shall allocate an  adequate budget to implement every aspect of its HIV/AIDS programme.



4. Interaction with civil society



The Department shall endeavor to utilise all opportunities in which it interacts with civil society  to contribute to the mission and objectives of the  National  AIDS programme.


5. Interaction within government



The Department shall serve  on the  Provincial Interdepartmental Committee to ensure a uniform and concerted response by government to the  epidemic.




Good Practice example of an HIV/ AIDS policy (adapted from

Family  Health International)



1. People with HIV/AIDS are  entitled  to the  same rights, benefits and opportunities as people with other  serious or life-threatening illness.

2. Employment practices related to HIV/AIDS will, at a minimum, comply with national, regional and local  laws and regulations.

3. Employment policies  should  be based on scientific and epidemiological evidence that  people with HIV/AIDS do not pose a risk of transmitting  HIV to co-workers  through ordinary workplace contact.

4. The highest  level of management, union and other  worker leadership should  endorse non-discriminatory employment policies  and educational programmes about HIV/AIDS.

5. Employers,  unions and other  worker representatives should  communicate their support of these policies  in simple, clear and unambiguous terms.

6. Employers  should  provide employees with sensitive and up-to-date training about HIV/AIDS risk reduction in their

personal lives.

7. Employers  have a duty to protect the  confidentiality of employees’ medical information.

8. To prevent work disruption  and rejection by co-workers  of an  employee with HI/AIDS, employers and worker representatives should  undertake education for all employees before such  an  incident occurs and as needed thereafter.

9. Employers  should  not require  HIV screening as part  of pre-employment or general workplace physical examinations.

10 In special occupational settings  where  workers are  regularly exposed to human blood or blood products, such  as health care facilities, there  may  be potential risk of exposure to HIV.  In such  settings,  employers should  provide ongoing education, training and the  necessary equipment to reinforce appropriate infection  control  procedures and ensure that  they are  implemented.




Guide to a successful workplace



Good workplace HIV/AIDS policies  comply with certain standards. The following  checklist provides a guide against which  an existing workplace HIV/AIDS policy can be evaluated.







Policy clearly  states the  organisation’s position  on HIV/AIDS

Policy formulated around principles,  non-discrimination, equity  and confidentiality, rights and responsibilities;

Policy process was consultative;

Policy communicated to all existing and all new staff members;

Policy addresses the  needs and concerns of the  relevant role players  in the  organisation;

Key elements of a workplace HIV/AIDS programme are  present;

Details of employment policies  (such  as HIV testing,  employee benefits, performance management, etc)  and employee assistance programmes in the  context of HIV/AIDS are  included;

Standards of behaviour expected of employers and employees relating  to HIV/AIDS are  out;

Grievance procedures for HIV-related complains are  detailed;

Complies with the  laws relating  to HIV/AIDS in the  workplace;

Consistent with the  current  technical, medical and scientific understanding and best  practice on HIV/AIDS in the workplace;

Makes  provision for meaningful participation by people infected with and affected by HIV/AIDS (GIPA);

Appropriate to the  organisation;

Responsibilities are  assigned;

Resources are  allocated;

Policy is dynamic and able to adapt to changing situations;  and

Provides for monitoring, evaluation and review.




3.3.4 Succession planning and skills development



Succession and skills development planning should  be an  integral  part  of any  organisation and should  be no different for people with HIV/AIDS.  Developing a succession planning capability and implementing a skills succession plan should  follow the  steps  below:


Research and describe the  business case  for creating a succession plan  that  includes trends  in the  economy, demographic changes in the  profile of the  working population, an  analysis  of recruiting  costs  and the  need to change from succession planning for top  management positions to succession planning for all key positions.

Conduct a gap analysis  of core competences that  relate to organisational needs.

Define the  strategies to guide succession planning.

These need to developmental  and consultative; they should  include assessment techniques (e.g.  of the  talent  of employees) and a plan  for regular  review.

Benchmark the  strategies against best  practices in successful companies.

Agree  on the  process for identifying positions and individuals to be included in succession planning pool.

This includes differentiating between the  positions identified  as "corporate critical roles", and the  positions/roles earmarked  "needing continuity".

Assess training needs related to the  pool.

Integrate the  skills succession process into other  organisational processes, particularly HR process such  as employee development.

Implement the  succession planning process.

Audit the  process.



Succession planning must  include competency identification, integrating the  succession plan  with employee development processes and creating a talent  pool  from which the  organisation can draw  the  needed competencies.


Good practice from Kgalagadi Breweries  (PTY) LTD, Botswana (Loweson et al "Company Best  Practice in AIDS and Employment")


KBL machinery works on a continual process and may  not be unattended at any  time.   Each  machine therefore has a full time  and a relief operator, who work the  same shift, allowing one person to take breaks.  When KBL increased its mechanisation, jobs became redundant in the  company, and affected employees could either be redeployed or retrenched.  Rather than  choose retrenchment, and recognising the  potential losses that  could occur due to AIDS, KBL used the  extra people to create a buffer pool  of 10 people.  Of the  original 10 people, 4 have been redeployed, now leaving  a pool  of 6 people.  This pool  was multi skilled at operational level and remains full time employees who fill in wherever  they are  needed.  This was originally seen as a cost  but is now reported to have yielded a production benefit that  exceeds the  costs.


KBL has  a formal succession plan  for identical positions,  motivated by the  strong  localisation programme  in the company.  A position  usually has  more than  one potential successor to promote competition within the  company, also  saving  on the  costs  of recruitment and training when  employees are  lost or leave.  There are  currently nine expatriate positions,  all with understudies.  These understudy positions also  have understudies, so the  system  is

three-tiered.  Usually the  vacant position  is discussed with employees and any  required training is provided on the job, but may  include formal courses.


KBL has  taken a holistic approach to HIV/AIDS, with a special focus  on human resource strategies. The company has  made investments in sustaining  a buffer pool  of labour  and skills development that  has  helped to avoid  lost work time  due to HIV/AIDS.  The total training budget for 1997  was US$393 000.   The strategies are  backed by structured channels for communication and consultation. The intervention  has  been planned by a skilled and experienced HR director  who is included at Board level, and who is supported by bipartite  discussions.




3.3.5 Employee benefits



In terms  of 15.1  and 15.2  of the  Code of Good Practice on the  Employment of People with Disabilities, an  employer who provides or arranges for occupational insurance or other  benefit plans  directly or through a separate benefit scheme or fund,  must  ensure that  they do  not unfairly discriminate, either directly or indirectly against people with disabilities (Including people who are  living with HIV/AIDS).


Employees with disabilities may  not be refused membership of a benefit scheme only because they have a disability (Including people living who are  living with HIV/AIDS).




Management needs to further consider ways to manage the  impact of HIV/AIDS on employee benefit schemes.  This

requires  an  integrated strategy aimed at measures to manage the  costs  of HIV/AIDS on employee benefits, as well as ensuring  that  an  HIV/AIDS strategy based on prevention and wellness of employees is implemented.


Examples of strategies include:



Benefit restructuring  to limit the  financial  impact of early death and disability;

Intensive and focused education programmes to prevent further HIV infection;

Appropriate disease management programmes to reduce absenteeism and limit of AIDS morbidity;

Sick and disability management policies  to ensure that  the  decision as to when  a member is disabled is taken on the  basis  of function  (that is, ability to perform the  job), rather  than  pure  medical (that is, the  fact  of a person being HIV positive) grounds.


Checklist of critical benefit fund






To what  extent  does the  value  of benefits payable on death or disability exceed  actuarial reserves? Are there more cost  effective ways of structuring benefits while still meeting needs of members, e.g. by converting lump sum disability benefits to income replacement benefits? What is the  level of exposure to HIV/AIDS risk in the  fund? How can education strategies be developed to ensure that  risky behaviour is minimised?

To what  extent  is the  fund protected against inappropriate ill-health retirement practices by the  employer or the insurer, and to what  extent  can proper sick leave and disability management reduce the  impact of HIV/AIDS on the  fund?

Does  the  projected change in cash flow patterns as a result of HIV/AIDS require  a different  investment policy? (e.g.  where  benefits are  paid earlier, thereby reducing the  term  of investments.)

What is the  risk profile of this scheme?

What benefit restructuring  can be done, in particular where  there  is a danger of anti-selection where  particularly generous benefits are  offered in an  open medical scheme?

What is the  structure  and aim  of an  appropriate HIV/AIDS disease management programme?

How do  we ensure enrolment on the  programme and ensure compliance with anti-retroviral treatment where  it is offered?

Financial  actuarial modeling of the  costs  and benefits of the  disease management programme.




3.3.6 Compliance with legal obligations



An important management function  is to regularly review all workplace policies,  employment practices and employment conditions to check for compliance with the  legislation.  In the  context of HIV/AIDS, this could involve the following actions:


(I) Review:



The situations  in which HIV testing  is being done;

The policy on occupational exposure and post-exposure prophylaxis;  and

Confidentiality  of medical information.



(II) Review all workplace policies,  procedures and protocols and include appropriate references to HIV/AIDS.



(III) Nominate an  official to monitor  compliance with the  legislation  from time  to time  and particularly following the promulgation of any  new legislation  with employment implications.


3.3.7 Development of management commitment



A lack of visible leadership is frequently  blamed for sub-optimal responses to HIV/AIDS.  Demonstrating management commitment can take many forms, amongst others,  are:

Championing the  course for corporate citizenship  on HIV/AIDS;

Promoting  cross-sector HIV/AIDS partnerships;

Acting as a catalyst to bring different  organisations together to work on joint HIV/AIDS projects;

Facilitating  the  transfer of innovative  solutions;

Demonstrating support for infected or affected employees and their families;

Using platforms to educate customers and suppliers;

Taking a principled stance  on human rights issues;

Serving as a role model to employees and to peers in other  organisations.



3.3.8 Workplace HIV/AIDS prevention and wellness programmes



Item 15.2  of the  Code recommends that  every workplace should  develop a workplace HIV/AIDS programme aimed at preventing new infections, providing  care and support for employees who are  infected or affected, and managing the  impact of HIV in the  organisation.


The Code also  outlines recommended minimum components  of a prevention programme, whilst recognising however that  the  nature and extent  of a workplace programme will be guided by the  needs and capacity of each individual workplace. The recommended minimum components  are:


Hold regular  HIV/AIDS awareness programmes;

Encourage voluntary testing;

Conduct education and training on HIV/AIDS;

Promote condom distribution and use;

Encourage health-seeking behaviour for STDs; and

Enforce  the  use  of universal infection  control  measures.



Workplace prevention programmes are  one of the  cornerstones of a comprehensive workplace response to HIV/AIDS. HIV prevention through behaviour change is a complex issue that  needs to be well understood if prevention programmes are  to have any  chance of success.  The usual  elements of a comprehensive workplace HIV/AIDS prevention programme includes:


Awareness raising activities such  as displays,  distribution of pamphlets, industrial theatre, events on World AIDS Day and so on;

Voluntary counselling and testing programmes either as an  on-site  service  or as a referral to a service  in the community;

Peer  education activities such  as group discussions on a range of topics  such  as risk reduction;

Training of other key personnel;

Condom use  and distribution;

Optimal management of STDs, again as part  of a workplace health service  or in the  community; and

An infection control programme, specifically focusing on health care providers.



Rationale for an HIV prevention programme



The close link between HIV/AIDS and such  diseases as TB and STDs suggest that  HIV/AIDS prevention programmes should also  include these diseases – they are  therefore often  referred  to as HIV/AIDS/STD/TB programmes.  The benefits of an  HIV/AIDS/STD/TB workplace prevention programme are  multiple  and include:


Increasing awareness of HIV/TB and STDs and improving  knowledge of key facts;

Reducing risk behaviour resulting in HIV and STD infections;

Promoting  VCT with the  attendant benefits of knowing one’s HIV status;

Creating a more tolerant and accepting attitude towards  HIV infected workers;

Producing positive effects on morale and productivity;

Ensuring a safe  working environment; and

Promotion  of abstinence, especially for young  people.

An example of strategies for formulating an HIV prevention programme






To raise awareness of HIV/AIDS/STDs and TB

To promote and support safer  sexual practices

To promote and support STD health seeking behaviour

To promote voluntary counselling and testing

To provide employees with the  knowledge and means to protect themselves from occupational exposure to HIV

To equip key employees with knowledge and skills to implement the  workplace HIV/AIDS programme


Prevention  activities

Disseminate HIV/AIDS/STD/TB-related literature and materials

Conduct HIV/AIDS/STD/TB awareness campaigns

Conduct formal and informal prevention activities

Promote and distribute condoms

Facilitate access to STD treatment (syndromic management)

Promote voluntary HIV testing  (with counselling)

Institute an  infection  control  programme

Skills development and capacity building  for implementation

Conduct initial and on-going training for:

Peer educators


Supervisors/team leaders

Union representatives


Workplace prevention programmes are essential to combat the  spread of HIV and to foster  greater tolerance towards persons living with HIV/AIDS.


The following key issues should  be considered in the  development of a prevention programme:


Prevention  programmes should  be presented in a variety of forms – not only relying on the  written media;

They should  be targeted and tailored to age, gender, literacy levels and cultural contexts;

As far as is practicable HIV prevention programmes should  be integrated into other  workplace programmes, such as safety  and health promotion programmes;

Behaviour  change is dependent on a complex combination of awareness, skills, perceptions and cultural factors. HIV/AIDS prevention programmes that  aim  to promote and support behaviour change  must  recognise this complexity.  They must  also  provide practical measures to support behaviour change.

Prerequisites  for behaviour change.

Correct basic knowledge.

Understanding how the  disease may  affect one’s life and family.

Motivation to act.

Skills for decision-making, negotiation, condom  use  etc.

Supportive  social  values.

Access to appropriate services  e.g. STD services, counselling.

Acceptance and non-discrimination.

Convey message, which promote risk reduction behaviour.


Characteristics of a successful HIV/AIDS/STD/TB prevention programme:


Have  top  management support;

Are developed, implemented and monitored by bipartite  committees;

Are integrated into general health promotion programmes;

Are backed by access to health services;

Develop an  environment for long-term behaviour change;

Monitor impact through collection and review of health, sick leave, turnover and productivity  data;

Provide training and information support to staff managing the  programme; and

Have  a forum to exchange experiences and ideas.



There are  many tools available for assessing the  needs, knowledge levels and attitudes, particularly attitudes towards those living with HIV/AIDS.  This information should  be used to inform the  prevention programme.  Below is a simple questionnaire that  can be amended or used in its present form to measure the  knowledge, attitudes and practices about HIV/AIDS in the  workplace.

Participant questionnaire






Don’t know

1. Did AIDS come from the  green monkey in Central  Africa?




2. Can you get  infected with HIV from donating blood?




3. Can you get  infected with HIV by having  oral sex with an  infected person?




4. If you have only one sexual  partner can you get  infected with HIV?




5. Is it safe  to share a cigarette with someone who is HIV positive?




6. Can the  HIV test tell when  a person was infected?




7. Are all babies born  to HIV infected mothers also  infected?




8. Is there  treatment to prevent you from getting TB if you are  HIV positive?




9. Would you eat at your favourite  restaurant if you knew that  the  chef was infected with HIV?




10. Would you be willing to take care of a family member with HIV/AIDS?




11. Should people with HIV/AIDS be allowed to have communion at church?




12. Do you support virginity testing  as a way to keep the  youth free of HIV?




13. Should people who are  HIV positive have sex?




14. Do you believe that  the  HIV/AIDS epidemic will sort out Africa’s overpopulation problems?




15. Should infected people be forced to disclose to their families?




16. Would you support AIDS being made a notifiable  disease?





Developing an action or operational plan


The second step  for an  organisation is to develop a plan  for a prevention programme.  This should  start with:


Analysing the  needs assessment

Reviewing successful best  practices;

Synthesising the  experiences that  will be relevant for their organisation; and

Then drafting  an  action/operational plan.


These plans  describe how the  individual prevention elements in the  organisation’s HIV/AIDS workplace policy will be put into operation, the  costs  involved,  time  frames and those responsible persons/departments.  They also  provide information for monitoring purposes by identifying outputs and indicators.


An example of an operational plan:


Policy statement


Process details




Conduct training of peer educators


Identify 1 peer educator per

50 employees


Ensure representivity  according to:

- shift

- language/ethnic group



Budget: Time frame:


Register of peer educators


Team leaders




Conduct initial

5-day training

Include information on:


- Human sexuality

- Risk reduction and condom use

- Universal precautions and infection  control

- Testing and counselling

- Legal and ethical issues and women’s  rights

- Communication and motivation skills

- Company policy

- Internal & external  resources/referrals/support



Budget: Time frame:




Participant and trainer reports

Training Dept. Partners:



Monitor peer education meetings


- How often  do  they take place?

- How many people participate?

- What is discussed?

- What problems do  peer educators report?



Budget: Time frame:


Feedback reports  from peer educators


Nominated trainer



Conduct 2-day annual in- service  training

- Conduct a needs assessment to inform programme for in-service  training

- Develop appropriate modules

- Conduct training



Budget: Time frame:

Needs assessment


Training modules Workshop



Dept. Partners:


HIV prevention programme elements:



A prevention programme can include a wide range of activities aiming at reducing the  spread of HIV.  The following is an  example of a good practice programme:


Good Practice Example of a Prevention programme policy

(National Union of Metal Workers of South  Africa)



This policy recommends that  a prevention programme consist  of the  following components:




Peer education

Access to condoms

Access to health services  to treat  TB and opportunistic infections

Provision of treatment to prevent mother to child transmission  of HIV

Voluntary counseling and testing

Protective equipment to prevent occupational  transmission

Post exposure prophylactic treatment after  an  occupational exposure

Support  for infected and affected persons and families.




Awareness activities should  be linked to broader awareness campaigns on subjects such  as violence against women and other  symbols  of HIV/AIDS awareness, including red  ribbons  and the  addition of HIV/AIDS logo(s) on key organisational documents.  The range of awareness materials can be found  in the  Department of Health (DOH) publication, South African HIV/AIDS materials catalogue.


Voluntary HIV counselling and testing programme (VCT)



Research shows that  HIV testing  and counselling are  an  important part  of any  HIV/AIDS prevention programme because:


For behaviour change  to take place individuals need to take responsibility for their own sexual  health and for that of their sexual  partners.  Access to voluntary counselling and testing  is a key strategy for encouraging and empowering people to take on these responsibilities;

Knowledge of one’s HIV status  enables a person to take life-changing decisions such  as starting a treatment programme and making changes.

Counselling helps  people to come to terms  with their HIV status.   It provides them with information on the  basic facts  of HIV/AIDS, how to protect others  from infection  and how to disclose their HIV status  to others.

The VCT programme must  be lawful; must  be done with consent; counseling must  be provided; must  be confidential;

and testing  must  ensure accuracy.



Ensuring that  HIV testing  complies with the  law which requires  that  such  testing  meets the  standards set out in the

Employment Equity Act.



Consent will only be legal  if the  person consenting has  legal  capacity, eg children  under the  age of 14 do  not have the  legal  capacity to consent on their own to the  taking of blood; ensuring  that  the  person fully understands what  they are  consenting to; ensuring  that  the  person has  been provided with information on the  procedure, i.e. the  nature and the  form of the  HIV test, and its risks and implications, particularly on the  kind of information they have expressly

agreed to the  testing;  counselling precedes the  testing;  and the  person has  been provide with pre-  and post-test counselling.


Department of Health’s  Draft National Policy on  HIV Testing (2000)  defines pre-  and post-test counselling in the  following way. This definition forms a minimum standard for the  core content of HIV-related counselling:


Pre-test counselling:



Pre-test counselling is that  counselling given  to an  individual before an  HIV test, to make sure that  the  individual has sufficient information to make an  informed decision about having  an  HIV test.   Pre-test counselling should  include discussions on:


What an  HIV test is, the  purpose of the  test;

The meaning of both  a positive and negative test result, including the  practical implications such  as medical treatment and care, sexual  relations,  psycho-social implications, etc;

Assessment of personal risk of HIV infection;

Safer sex and strategies to reduce risk;

Coping with a positive test result, including who to tell, identifying needs and support services;  and

An opportunity for decision-making about taking the  HIV test.



Post-test counselling:



Post-test counselling is the  counselling provided when  an  individual receives his or her HIV test result. Post-test counselling involves one or more sessions  (ideally at least  two) and should  include discussions on:


Feedback and understanding of results;

If the  result is negative:



– Strategies for risk reduction;

– Possibility of infection  in the  window period;

If the  result is positive:



– Immediate emotional reaction and concerns;

– Personal,  family and social  implications;

– Difficulties a patient may  foresee and possible coping strategies;

– Who the  patient wants  to share the  results with, including responsibilities to sexual  partners;

– Immediate needs and social  support identification;

– Follow-up supportive counselling; and

– Follow-up medical care.



Workplace HIV counselling programmes  should  ideally be general counselling programmes.   This will ensure that  the service  does not become stigmatised. Many organisations choose to integrate HIV counselling with their EAP (Employee Assistance Programmes) services.



The Code provides that  employees do  not have to disclose their HIV status.   Confidentiality  is therefore compulsory for voluntary counselling and testing.


In addition, steps  must  also  be taken to ensure accurate HIV testing.  The Civil Military Alliance, for example, suggest the  following 4 steps  to ensure that  voluntary HIV counselling and testing  is not undermined by the  use  of inaccurate HIV tests:


Usage  only of highly accurate tests;

Conducting confirmatory tests before handing the  persons a positive result;

Offer the  persons a new test; and

Monitor and evaluate the  laboratory procedures.


Education and training


The core of education and training is a use  of peer educators who have either volunteered or been nominated to conduct HIV/AIDS education sessions.   It is important to ensure that  such  persons have qualities  such  as maturity, empathy and good communication skills, and they should  be highly motivated and respected.


Checklist of topics to be included in an education and peer training programme






– Transmission of HIV;

– Prevention  of HIV transmission;

– STDs;

– How to assess personal risk and formulate behaviour change plans;

– Safer sex;

– Testing facilities and processes;

– The rights of infected and affected employees (including  confidentiality);

– How to treat  a co-worker  with HIV/AIDS;

– Treatment, care and support for infected employees;

– Infection  control  – in the  workplace;

–The workplace HIV/AIDS policy;

– Non-discrimination – not only in terms  of benefits; and

– Referral sources and services.




Management training



Training should  be provided for managers, supervisors,  personnel/HR  officers, trade union representatives, occupational health and safety  personnel and factory  inspectors, as well as to peer educators.




Managers,  supervisors, trade  union  representatives and personnel officers  need training to:


Explain the  HIV/AIDS workplace policy;

Understand and comply with legal  requirements (such  as those relating  to testing  and confidentiality);

Deal with infected and affected employees;

Identify and manage behaviour, conduct or practices that  discriminate against infected and affected employees;

Advise about health services  and social  benefits;

Promote the  different  aspects of the  workplace HIV/AIDS programme.

The following  is a chart that can be used to determine the  effectiveness of an HIV prevention programme.


An organisation can rate itself against the  programme elements indicated in the  chart.



Prevention programme evaluation tool





Overall  assessment

Areas for Action

















How was the  document developed? Who is responsible for implementation?

What is the  budget for the  programme?


Programme implementation document


Awareness activities


– STD’s

– TB





How often  and how are  these activities conducted?

What resources are  used to support the activities?


Testing and counselling





Is voluntary HIV counselling and testing available & used?

Is there  evidence of an  increase or decrease in VCT use?

Is other  or on-going counselling available? What training was provided and what

on-going support is available to



Peer education





What initial training do  peer educators receive?

What on-going training and/or support do peer educators receive?

What activities do  they undertake, how often  and with whom?


Training of trainers





Have  trainers been trained to run

HIV/AIDS/STD/TB training?

Is HIV/AIDS/STD/TB training integrated into the company training programme?


Condom promotion





How often  are  condom promotion activities run?

What do  these activities consist  of?


Condom  distribution





Where and when  are  condoms available? What is condom uptake?