Employment Equity Act, 1998 (Act No. 55 of 1998)

The guiding principles in this Code are based on International Conventions and Recommendations, The Constitution of the Republic of South Africa and national laws, which include:

The response to HIV and AIDS must be recognised as a contributing factor to the realization of human rights, dignity, fundamental freedoms, responsibility and equality for all, including workers and their dependants.

HIV and AIDS is a workplace issue and must be treated like any other serious illness or condition in the workplace. HIV and AIDS must be included among the essential elements of the national, provincial, local and sectoral response to the pandemic with full participation of all stakeholders.

Elimination of unfair discrimination remains a key principle for protection of the rights of individuals. There must be no unfair discrimination against or stigmatisation of workers on the grounds of real or perceived HIV status. It is the responsibility of every worker and employer to eliminate unfair discrimination in the workplace.

Women and girls are at greater risk and more vulnerable to HIV infection and are disproportionately affected by HIV compared to men as a result of gender inequality. Women's empowerment is a key factor in responding to HIV and AIDS and the world of work. Measures must be taken in the world of work to ensure gender equality, prevent violence and harassment, protect sexual and reproductive health and rights and involve men and women workers, regardless of their sexual orientation, in the HIV response.

Real or perceived HIV status is not a valid cause for termination of employment. Workers with HIV-related illness must not be denied the possibility of continuing to carry out their work unless proven medically unfit to do so. As with many other conditions, workers with HIV and AIDS must be reasonably accommodated and be able to work for as long as medically fit. Medical examination should be limited to the capacity of a worker to perform the task(s) of a particular job.

Prevention of all modes of HIV transmission and TB is a fundamental priority for the country. In keeping with this principle the workplace must facilitate access to comprehensive information and education to reduce the risk of HIV transmission and HIV-TB co-infection and STI’s.

Treatment, care and support services on HIV and AIDS must be accessible to all workers and their dependants. All workers must have access to affordable health services, social security, insurance schemes or other employment-related benefits either through the employer, the State or non-governmental organisations. Programmes of care and support must include measures of reasonable accommodation in the workplace for persons living with HIV or HIV-related illnesses.

Implementation of policies and programmes on HIV and AIDS should be based on cooperation and trust amongst government, employers and workers and their representatives. Employers and workers should engage in the design, implementation and evaluation of national and workplace programmes, with the active involvement of persons living with HIV and AIDS.

The workplace must be safe and healthy for all workers, and they must benefit from programmes to prevent specific risks of occupational transmission of HIV and related transmissible diseases, such as TB, especially in jobs most at risk, including the health care sector.

Workers and their dependants must enjoy protection of their privacy, including confidentiality relating to their own HIV status or that of their co-workers. Workers must not be required to undergo HIV testing or other forms of screening for HIV unless found to be justified by the Labour Court. The results of HIV testing must be confidential and not endanger access to jobs, tenure, job security or opportunities for advancement.