| 1) | 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. |
| 2) | Whether section 7(2) of the Employment Equity Act prevents an employer-provided health service supplying a test to an employee who requests a test, depends on whether the Labour Courts would accept that an employee can knowingly agree to waive the protection in the section. This issue has not yet been decided by the courts.* |
| 3) | In implementing the sections below, it is recommended that parties take note of the position set out in item 7.1.2. |
* The Employment Equity Act does not make it a criminal offence for an employer to conduct a test in violation of s 7(2). However an employee who alleges that his or her right not to be tested has been violated may refer a dispute to the CCMA for conciliation, and if this does not resolve the dispute, to the Labour Court for determination.
Employers must approach the Labour Court for authorisation in, amongst others, the following circumstances:
during an application for employment;
| i) | as a condition of employment; |
| ii) | during procedures related to termination of employment; |
| iii) | as an eligibility requirement for training or staff development programmes; and |
| iv) | as an access requirement to obtain employee benefits. |
| a) | An employer may provide testing to an employee who has requested a test in the following circumstances: |
| i) | As part of a health care service provided in the workplace; |
| ii) | In the event of an occupational accident carrying a risk of exposure to blood or other body fluids; |
| iii) | For the purposes of applying for compensation following an occupational accident involving a risk of exposure to blood or other body fluids. |
| b) | Furthermore, such testing may only take place within the following defined conditions: |
| i) | At the initiative of an employee; |
| ii) | Within a health care worker and employee-patient relationship; |
| iii) | With informed consent and pre- and post-test counselling, as defined by the Department of Health’s National Policy on Testing for HIV; and |
| iv) | With strict procedures relating to confidentiality of an employee’s HIV status as described in clause 7.2 of this Code. |
| 6) | All testing, including both authorised and permissible testing, should be conducted in accordance with the Department of Health’s National Policy on Testing for HIV issued in terms of the National Policy for Health Act, No. 116 of 1990. |
| 7) | Informed consent means that the individual has been provided with information, understands it and based on this has agreed to undertake the HIV test. 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. |
| 8) | 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. |
** See amongst others the Department of Health’s National Policy for Testing for HIV and the Biological Hazardous Agents Regulations.
| 7.2) | Confidentiality and Disclosure |
| 1) | 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. |
| 2) | 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. |
| 3) | Mechanisms should be created to encourage openness, acceptance and support for those employers and employees who voluntarily disclose their HIV status within the workplace, including: |
| a) | encouraging persons openly living with HIV or AIDS to conduct or participate in education, prevention and awareness programmes; |
| b) | encouraging the development of support groups for employees living with HIV or AIDS; and |
| c) | ensuring that persons who are open about their HIV or AIDS status are not unfairly discriminated against or stigmatised. |
