1.2.8 AIDS in the workplace

By the Minister for the

Public Service and

Administration

The impact of HIV/AIDS and other chronic diseases is being felt in the country as a whole, and the workplace is no exception.

With infection rates still on the increase, departments must be prepared to deal effectively with HIV/AIDS so as to maintain high productivity and service delivery levels whilst avoiding discrimination of those infected or affected. Partnerships between government and the private sector have to be forged in order to develop and implement policies and programmes that are aimed at combating the spread of the virus and mitigating the impact of the AIDS pandemic.

As the single biggest employer in South Africa, with nearly 1.1 million public servants employed by approximately 140 government departments at national and provincial level, there is no doubt that the Public Service has a crucial role to play in mitigating the impact of HIV/AIDS as part of its overall focus on the health and well-being of its members. Large numbers of people are also direct dependants of public servants, and as a result the fate of society as a whole is closely intertwined with the health and well-being of public servants. Recognising the serious nature of HIV/AIDS and its impact on South Africa, I initiated the Impact and Action Project in January 2000 which is aimed at ensuring that the Public Service is able to sustain a quality service in spite of the progression of the AIDS pandemic.

In consultation with stakeholders the Department of Public Service and Administration has developed a policy framework to guide departments on the minimum requirements to effectively manage HIV/AIDS in the workplace and to ensure a co-ordinated Public Service response.

To give effect to this policy framework I have, on 21 June 2002 under Section 41 of the Public Service Act, 1994, amended the Public Service Regulations, 2001, with regard to the proper management of HIV/AIDS in the workplace. The policy framework is aimed at ensuring that the working environment supports effective and efficient service delivery, while as far as reasonably possible, taking employees’ personal circumstances, including disability, HIV/AIDS and other health conditions into account.

To assist with the implementation of the Regulations, the DPSA has developed this Guide which provides practical guidance and information on how departments should respond to the threat of HIV/AIDS in the workplace and as such the Guide complements the Regulations. In essence the Guide is expected to assist departments in planning, developing, implementing and monitoring and evaluating workplace HIV/AIDS policies and programmes.

In conclusion, I wish to express my gratitude to the Impact and Action Project Steering Team and its subcommittees for the important role that they played in the development of this Guide. My special thanks go to all government departments as well as individuals in both the Public Service and the private sector who gave their invaluable inputs to this Guide. The authors deserve special thanks. I am also pleased to acknowledge the assistance received from the Canadian International Development Agency (CIDA) and United States Agency for International Development (USAID) for sponsoring the development of this Guide.

Ms GJ FRASER-MOLEKETI

MINISTER

JULY 2002

Definition of AIDS

AIDS Acquired Immune Deficiency Syndrome – a syndrome (collection of diseases) that results from infection with HIV.

No person with HIV or AIDS may be unfairly discriminated against within the employment relationship or within any employment policies or practices, including with regard to:

  • Recruitment procedures, advertising and selection criteria
  • Appointments, and the appointment process, including job placement
  • Job classification or grading
  • Remuneration, employment benefits and terms and conditions of employment
  • Employee assistance programmes
  • Job assignments
  • The workplace and facilities
  • Occupational health and safety
  • Training and development
  • Performance evaluation systems
  • Promotion, transfer and demotion
  • Disciplinary measures short of dismissal
  • Termination of services

Know the Facts

No employee, or applicant for employment, may be required by their employer to undergo an HIV test. HIV testing by or on behalf of an employer may only take place where the Labour Court has declared such testing to be justifiable in accordance with Section 7(2) of the Employment Equity Act.

All persons with HIV or AIDS have a right to privacy, including privacy concerning their HIV or AIDS status. There is no legal duty on an employee to disclose their HIV status to their employer or to other employees.

An employer cannot demand to know if the cause of an illness is HIV infection.

A doctor or health care worker who tells an employer about an employee’s HIV status without their consent is acting against the law. This is breaking the employee’s right to confidentiality.

An employee with HIV/AIDS may not be dismissed because he or she is HIV positive or has AIDS. (Section 187(1)(f) of the Labour Relations Act, No. 66 of 1995). However where there are valid reasons related to their ability to continue working and fair procedures have been followed, their services may be terminated in accordance with Section 188(1)(a)(i).

An employer is obliged to provide, as far as is reasonably practicable, a safe workplace. (Section 8(1) of the Occupational Health and Safety Act, No. 85 of 1993). This may include ensuring that the risk of occupational exposure to HIV is minimised.

An employee who is infected with HIV as a result of an occupational exposure to infected blood or bodily fluids, may apply for benefits. (Section 22(1) of the Compensation for Occupational Injuries and Diseases Act, No. 130 of 1993).

In accordance with the Basic Conditions of Employment Act, all employees must receive certain basic standards of employment, including a minimum number of days’ sick leave.

A registered medical aid scheme may not unfairly discriminate directly or indirectly against its members on the basis of their “state of health”. (Section 24(2)(e) of the Medical Schemes Act, No 131 of 1998).

The Code of Good Practice on key aspects of HIV/AIDS and employment is an excellent guideline in assisting employers to compile such a policy. The policy should contain acknowledgement that HIV/AIDS will be treated like any other life-threatening disease. It should encourage employees to be tested on a voluntary basis, at company expense, and should encourage employees to disclose their HIV status in confidence to the employer.

The policy must give assurances that confidentiality will be respected. Employers should arrange for education sessions for their employees to be educated on all the different tax rates of HIV/AIDS. The many myths that surround issues of HIV/AIDS are due only to a lack of education – employers will find it much easier to handle such issues in the workplace if the employees are properly educated on such matters.

Employers should also ensure that selected staff are properly trained in how to handle employees who may be involved in an accident causing bleeding. It is essential that the first-aid staff know how to handle such situations to minimise the chances of infection to other people. There must be a proper infection control procedure in place to prevent people from being exposed to infection via the blood of an injured person or via blood products.

Many employers introduce an Employee Assistance Programme, which can contain procedures for assisting employees with life-threatening diseases, and very importantly in terms of a certain percentage of the employee’s salary being paid to the employee for as long as 12 or 24 months after the employee is no longer able to work.

Employers are encouraged to investigate the availability and advantages of the different programs available. Bear in mind that there is no obligation on any employer to provide such facilities – the decision is for the employer to make. A medical aid facility may be another answer – some medical aid facilities exclude all cover for HIV and AIDS related illnesses, others provide a limited cover, others provide hospital cover only and so on.

Pension and Provident funds should be investigated – some such funds already provide facilities for early retirement based on ill health due to HIV and AIDS, others make no such provision at all except for a simple ill-health retirement benefit. Sick leave could become a problem. Generally, and infected the employee will use up his 30 day or 36 day entitlement very quickly – possibly even within the first six months of the leave cycle.

Employers must decide how they are going to handle further sick leave requirement – perhaps a Group Benefit Scheme might be the answer, whereby say 75% of the employee’s wages is paid for a further 12 or 24 months of the year is exhausted his statutory sick leave entitlement.

Employers can also consider allowing additional sick leave – for example, a certain number of days at 75% of wages, then a further allowance at 50% of wages, a final allowance at 25% of wages, after which the benefit falls away.

AIDS assistance can be obtained from:

AIDS hotline : 011-7253009

SAIMR Aids Centre :011-7256551/2

AIDS information & education :011-7256710

Township AIDS project :011-9825810