Employers & HIV

Employers generally tend to be conservative when they need an employee to submit to medical testing, especially HIV testing.  But is this necessarily the correct approach to adopt?

In terms of the Constitution, everyone has the right to equality, human dignity, bodily and psychological integrity, privacy and fair labour practices.

The Employment Equity Act prohibits unfair discrimination against an employee on the grounds of HIV status.

In Hoffman vs South African Airways the applicant challenged the company’s policy of not employing HIV positive people as cabin attendants.  Hoffman was in the asymptomatic phase and could adequately perform the work required.

The Constitutional Court ruled that HIV positive applicants for employment who have not yet been incapacitated by the disease cannot be refused employment solely on the basis of their HIV status.

The Employment Equity Act also prohibits medical testing unless it is required by legislation or is justifiable in light of a number of factors, including medical facts, employment conditions and social policy.

The Act explicitly prohibits testing to determine an employee’s HIV status, unless such testing is authorised by the Labour Court.  If the Labour Court approves the medical testing, the court may impose certain conditions, such as the provision of counselling, or the maintenance of confidentiality.

There are conflicting court decisions on whether an employer who wishes to conduct HIV testing anonymously must apply to the Labour Court for permission.
The Code of Good Practice on Key Aspects of HIV/Aids and Employments sets out the following examples of when the Labour Court must be approached for permission to conduct HIV testing:

• During a job application;
• As a condition of employment;
• During procedures related to termination of employment;
• As a requirement for training or staff development programmes; and
• As an access requirement to obtain employee benefits.

There are no reported cases where an employer applied to court for permission to conduct HIV testing (apart from permission to conduct anonymous testing).

This is surprising, considering than an employer would have a justifiable interest in assessing an employee’s medical condition in relation to certain occupations, such as a factory first-aid worker.

It would probably be argued that this is not necessary provided the first-aid worker takes the necessary precautions; however, is this always possible?  And if medical testing is necessary, then is the employer not guilty of negligence if it fails to test its employees in appropriate circumstances?

It seems that employers are prepared to take their chances in defending a negligence claim rather than requiring an employee to submit to medical testing or apply to the Labour Court for permission to test for HIV – Priyesh Modi, attorney, Bowman Gilfillan Attorneys.

Sunday Times February 19 2006