Legislative changes now protect persons living with HIV against discrimination in the workplace, and it is mandatory for employers with more than five regular employees on staff to develop a written policy on HIV and AIDS.
The law forms part of the regulations which will accompany the Occupational Health and Safety Act and is intended to prevent the spread of HIV in the workplace and also stem the associated stigma and discrimination.
HIV testing is not a precondition to employment and no employer is allowed to ask any person whether directly or indirectly, to undergo any form of testing for HIV before hiring that person. An employee is also not required to disclose any information regarding his/her HIV status in connection with the employment.
The law states: “No employees shall suffer prejudice, based on his HIV status or perceived HIV status, in relation to – promotion; transfer; any training or other employee development programme subject to any other law to the contrary; remuneration and working conditions; and any other terms and conditions of employment.” The law continues: “Where in terms of any law, the eligibility of a person for any occupational or other benefit scheme is conditional upon an HIV test, the conditions attached to HIV and AIDS shall be the same as those applicable in respect to comparable chronic diseases.”
Also, the HIV status of an employee shall also not affect his eligibility for any occupational or other benefit schemes provided for employees. According to the legislation, legal sanctions will be imposed on employers who contravene any of the provisions.
A number of workplaces had previously developed HIV policies through collaboration with the Ministry of Labour and other partners. The law now states that written work place policies must be developed by the employer in consultation with employees and including, where they exist, and union representatives.
The policy must also be in consonance with the National HIV and AIDS workplace policy which provides the basis for putting in place a comprehensive workplace programme, combining prevention, care and the protection of rights.
The law underlines the importance of support and care in workplaces for employees living with HIV/AIDS and also for information sharing. It makes provisions for employers to share information on counselling facilities; social support services to help employees effectively manage their health needs in HIV and AIDS; and confidentiality referral to supportive services for employees and their dependents affected by the disease.
Other provisions include information sharing in relation to the promotion of safe sex and risk reducing measures in relation to sexually transmitted diseases; the acquiring and transmission of HIV; the prevention of the spread of the virus; counselling facilities on the virus; confidentiality referral to supportive services for employees and their dependents affected by the virus; and social support services to help employees effectively manage their health needs in HIV and AIDS.
To facilitate this information sharing, employers are required to appoint persons who are knowledgeable and have expertise in matters relating to HIV and AIDS, and are able to communicate information with consistency and accuracy.
The law also states that the provision of education and information sharing must be done quarterly or at such intervals to be mutually agreed by the employer and the employees.
Additionally, employers also have to give employees at the time of their employment, a copy of the workplace HIV and AIDS policy, a basic fact sheet on the transmission and prevention of HIV, and a list of referral services for workers and their dependents.
Further, in the area of HIV risk management, where a person is employed in an occupation or is required to provide services where they may be a risk of transmitting or acquiring HIV and other blood-borne infections, the employer shall provide appropriate training together with clear and accurate information and guidelines on minimizing the risk of infection and the spread of HIV and other blood-borne diseases.