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

Code of Good Practice

HIV and Aids and the World of Work

6. Legal Framework
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6.1This Code must be read in conjunction with The Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996) and all relevant legislation as amended, which includes:
(a)Basic Conditions of Employment Act, 1997 (Act No. 75 of 1997);
(b)Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of 1993);
(c)Employment Equity Act, 1998 (Act No. 55 of 1998);
(d)Labour Relations Act, 1995 (Act No. 66 of 1995);
(e)Occupational Health and Safety Act, 1993 (Act No. 85 of 1993);
(f) Unemployment Insurance Act, 2001 (Act No. 63 of 2001);
(g) Children's Act, 2005 (Act No. 38 of 2005);
(h)Medical Schemes Act, 1998 (Act No. 131 of 1998);
(i) Mine Health and Safety Act, 1996 (Act No. 29 of 1996);
(j) National Health Act, 2003 (Act No. 61 of 2003);
(k) Occupational Diseases in Mines and Works Act, 1973 (Act No. 78 of 1973);
(I) Promotion of Access to Information Act, 2000 (Act No. 2 of 2000); and
(m) Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No. 4 of 2000).

 

6.2The contents of this Code must be taken into account when developing, implementing or reviewing any workplace policies or programmes and must be read in conjunction with the following legislative provisions as amended:
6.2.1In accordance with both the common law and Section 14 of The Constitution of the Republic of South Africa, all persons with HIV and AIDS have a right to privacy, including privacy concerning their HIV status. Accordingly, there is no general legal duty on a worker to disclose his or her HIV status to his or her employer or to other workers;
6.2.2This Code is issued in terms of Section 54(1)(a) of the Employment Equity Act and is based on the principle that no person may be unfairly discriminated against on the basis of real or perceived HIV status;
6.2.3Section 6(1) of the Employment Equity Act provides that no person may unfairly discriminate against a worker or an applicant for employment, in any employment policy or practice, on the basis of his or her HIV status;
6.2.4Section 6(3) of the Employment Equity Act prohibits harassment of a worker based on his or her HIV status. Measures must be adopted at the workplace to reduce the transmission of HIV and AIDS to alleviate its impact by ensuring actions to prevent and prohibit violence and harassment in the workplace;
6.2.5Section 7(2) of the Employment Equity Act prohibits testing of a worker to determine that worker's HIV status unless such testing is determined to be justifiable by the Labour Court in terms of section 50(4) of the Employment Equity Act;
6.2.6In accordance with Section 187(1)(f) of the Labour Relations Act, a worker with HIV and AIDS must not be dismissed based on his or her HIV and AIDS status;
6.2.7In terms of Section 8(1) of the Occupational Health and Safety Act, an employer is obliged to provide a safe workplace;
6.2.8Sections 2(1) and 5(1) of the Mine Health and Safety Act provide that an employer is required to create a safe workplace;
6.2.9A worker who is infected with HIV as a result of an occupational exposure to infected blood or bodily fluids must apply for benefits in terms of Section 22(1) of the Compensation for Occupational Injuries and Diseases Act;
6.2.10In accordance with the Basic Conditions of Employment Act, every employer is obliged to ensure that all workers receive certain basic standards of employment, including the minimum number of sick leave days [Section 22(2)];
6.2.11In accordance with Section 24(2)(e) of the Medical Schemes Act, a registered medical aid scheme must not unfairly discriminate directly or indirectly against its members on the basis of their "state of health";
6.2.12In accordance with Section 20 of the Unemployment Insurance Act, every employer is obliged to ensure that all workers are able to exercise their right to illness benefits;
6.2.13Section 20(1) of the National Health Act states that Health Care personnel must not be unfairly discriminated against on account of their health status. However, the head of the health establishment concerned, subject to any applicable law and in accordance with any guidelines determined by the Minister, may impose conditions on the service that may be referred by a health care provider or health care worker on the basis of his or her health status;
6.2.14In terms of section 13(1)(b) of the Children's Act, every child has the right to have access to information regarding his or her HIV Status;
6.2.15In accordance with section 16(5) of the Labour Relations Act an employer is not required to disclose the HIV status of a worker unless that worker consents to the disclosure of his or her HIV status;
6.2.16Sections 37(1) and 63(1) of the Promotion of Access to Information Act provide that employers must not disclose the HIV status of a worker unless that worker agrees to or consents to the disclosure of his or her HIV status;
6.2.17In terms of section 1(c) of the Occupational Diseases in Mines and Works Act, TB is a compensable disease where it is found, in the opinion of the certification committee, that a person contracted such disease while the person was performing risk work or where such person was already affected at any time within the twelve month period immediately following the date on which that person performed such work for the last time; and
6.2.18According to section 99(3) of the Occupational Diseases in Mines and Works Act, where the certification committee has found that a person is suffering from TB which is attributable partly to HIV but not mainly to work at a mine or works and where such person is not in receipt of full benefits for the TB in terms of the Compensation for Occupational Injuries and Diseases Act, or any other law, such person may receive benefits not exceeding one half of the benefits provided for in terms of the Occupational Diseases in Mines and Works Act.