|
HIV/AIDS AND THE LAW
http://www.paralegaladvice.org.za/docs/12_full.html
INTRODUCTION
NOTE !
This chapter was written and published in May 2002. So any
changes to the laws after this date will not be reflected in
the text. We note areas where there may be changes to the law,
for example, where parliament is still debating a bill. We will
also do an update to the laws and information in this chapter
every year.
Everybody
has heard about AIDS. It is one of the most widely talked about
illnesses in history. HIV/AIDS is a big problem in Africa and
South Africa. But very few people understand the real causes of
HIV and what can be done to prevent it.
There are
many untrue stories about AIDS. People who are living with HIV
or AIDS are discriminated against in all kinds of ways in our
society. For example, some people are refused employment or
proper health care. This is mostly because very few people
understand what HIV and AIDS mean. It is important that people
understand what HIV and AIDS are, what causes the illness and
what the law says about peoples rights.
What are HIV and AIDS?
HIV stands
for the Human Immune Deficiency Virus. This virus attacks the
immune system which is the body's defence against disease. HIV
can live in our bodies for years without us looking or feeling
sick in any way. Most people with HIV feel healthy and are able
to work and live healthy lives for many years. It is only when a
person develops an AIDS-related illness that he or she becomes
very ill.
AIDS is
caused by HIV. AIDS stands for Acquired Immune Deficiency
Syndrome. It is the name given to a group of serious illnesses
that are caused by your body being unable to fight infections.
People with HIV or AIDS are more likely to get some diseases and
infections because their immune system cannot fight them off.
The different stages of HIV
There are 5
stages of the HIV disease:
Primary HIV infection
After an
early feeling of sore throat, swollen glands, headache, muscle
aches or similar flu-like symptoms, you will return to feeling
completely well.
The asymptomatic or "silent" stage
If you have
the primary HIV illness you can feel very well for many years.
But the virus slowly destroys your immune system during this
stage. You can also easily infect other people through
unprotected sex.
Early HIV symptomatic disease
After many
years, some people will begin to show mild symptoms of HIV
disease, for example:
·
shingles
·
swollen
lymph glands
·
occasional
fevers
·
mild skin
irritations and rashes
·
fungal skin
and nail infections
·
mouth ulcers
·
chest
infections
·
weight loss
Medium-stage HIV symptomatic disease
This is the
stage when people with HIV can become quite ill without
developing the 'Aids-defining illnesses', for example:
·
tuberculosis
·
oral or
vaginal thrush that keep coming and going
·
herpes
blisters on the mouth or genital that keep coming and going
·
ongoing
fevers
·
ongoing
diarrhoea
·
significant
weight loss (more than 10%)
Late-stage
HIV disease (AIDS)
If there has
been no treatment to build up the immune system, the damage done
to the immune system by HIV causes opportunistic infections,
cancer and HIV-related damage to other organs such as the brain.
This stage is usually called 'AIDS'. People with AIDS often have
many illnesses at the same time, for example:
·
very bad
diarrhoea
·
extreme
weight loss
·
bad
pneumonia
·
brain
infections
·
confusion
and loss of memory
·
bad skin
rashes
·
pain and
difficulty swallowing
How is HIV passed on?
HIV is
mostly passed from one person to another in these ways:
·
through
unprotected sex (sex without a condom)
·
from an
infected mother to her child during pregnancy, birth or
breast-feeding
·
through
infected blood products, for example, infected blood transfusion
from the blood bank
·
through
infected needles shared by drug users
·
medical
staff cutting or pricking themselves with infected scalpels or
needles
Besides
these ways, HIV is very difficult to pass on. You cannot get
AIDS from someone who is HIV positive through kissing on the
lips, hugging, sharing food and drink or using the same bath or
toilet.
WARNING !
Deep kissing or 'french' kissing can pass on HIV if you have
sores in your mouth.
Anyone can
get AIDS, but some people are more vulnerable because they do
not have the power to say no to unprotected sex or because of
their risky lifestyles. The groups who are most vulnerable and
have the highest infection rates are:
·
young women
between 15 and 30 years old
·
sexually
active men who have more than one partner, particularly young
men
·
migrant and
mine workers
·
transport
workers
·
sex workers
·
drug users
who use needles
·
people who
practice anal sex
Young women
are the most vulnerable because they are the most common victims
of rape and sexual abuse and are often powerless to say no to
unprotected sex. Young girls are also at risk because of the
myth that having sex with a virgin will cure you of AIDS. This
is completely untrue.
NOTE!
Having sex with a virgin cannot cure you of AIDS
Other
vulnerable groups are :
·
people who
have different sexual partners and do not always practice safe
sex.
·
drug users
who share needles without sterilising them
·
people who
practise anal sex. This is dangerous because skin can be torn
causing injuries.
How can you treat HIV/Aids?
There is no
cure for HIV, but there are many ways to help people living with
HIV to improve the quality of their lives, for example :
·
by treating
the opportunistic infections that are caused by HIV so that
people can live longer, for example, by giving people
anti-biotics to fight diseases
·
by following
a healthy diet, exercising and living in a clean and healthy
environment
·
by providing
counselling and emotional support to the person and his or her
family
·
treating
people with anti-retroviral drugs
Anti-retroviral drugs cannot cure a person living with HIV but
they can strengthen the immune system and slow down the effects
of the virus. Anti-retroviral drugs should only be taken under
the supervision of a doctor.
Why do people living with HIV/AIDS suffer prejudice and
discrimination?
Fear leads
to discrimination and victimisation against people living with
HIV or AIDS. People have been taught to believe that only gays,
prostitutes, people who sleep around and drug users get infected
with HIV. They think if you are not one of 'these', you are
safe. This makes it easy for some people to discriminate against
others and blame them for the disease, while not protecting
themselves. And because people fear the discrimination they will
face if others know that they are HIV positive, they are afraid
to go for an HIV test or to be open about their HIV status.
HIV/AIDS
affects every one of us, whether we are gay, lesbian or
heterosexual.
The biggest
problem in fighting HIV/AIDS is breaking the silence that
surrounds the epidemic. Although thousands of people are ill or
dying, we are still afraid to speak about it. Families often
hide the fact that a relative had died of an AIDS-related
illness. People who are infected are afraid of being stigmatised
(rejected by their families and communities), so they hide their
illness.
NOTE !
The case of Gugu Dlamini is a terrible example of the prejudice
in communities towards HIV positive people. Gugu Dlamini was
murdered by people in her community because she announced that
she was HIV positive.
Most
discrimination against people living with HIV or AIDS is based
on ignorance and fear.
HIV/AIDS is
also linked to power in society. Usually it is the least
powerful people who are most at risk, for example:
·
poor people
are more likely to be infected than rich people
·
women do not
have the power to have safer sex - many men are unwilling to use
condoms
·
young girls,
particularly virgins, are especially vulnerable
To act
against the ignorance, fear and power linked to HIV/AIDS, there
is a need to teach people how to avoid HIV. But it is also
important to encourage them not to turn against those who are
HIV positive.
There is
also a need to make it easier for people to be open, to go for
tests, and to get proper health care. HIV must be treated as an
illness and not a shame that must be kept hidden and secret.
Communities need to become more caring towards people with HIV
and orphans of people who have died from AIDs-related illnesses.
They also need to take more responsibility for preventing the
spread of the disease.
How does poverty help spread HIV?
Where people
don't have a basic education or access to radio or TV, it is
hard to teach them about HIV and how to avoid passing on the
virus. It is also difficult to change the sexual behaviour of
people who live in desperate poverty in order to prevent HIV
infection.
In addition,
very poor people cannot afford the basic requirements for a
healthy lifestyle - such as healthy food, a clean environment
and clean water. They also cannot afford the costs of basic
health care - transport to clinics/hospitals, medicines,
anti-retroviral drugs, etc - unless the government makes these
accessible to them.
So, it is
clear that poverty cannot cause HIV or AIDS, but poor people are
more at risk of HIV infection and of developing the disease more
quickly.
HIV is
mostly passed from one person to another in these ways:
·
through
unprotected sex (sex without a condom)
·
from an
infected mother to her child during pregnancy, birth or
breast-feeding
·
through
infected blood products (for example, infected blood transfusion
from the blood bank)
·
through
infected needles shared by drug users
·
medical
staff cutting or pricking themselves with infected scalpels or
needles
Besides
these ways, HIV is very difficult to pass on. It is impossible
to pass on HIV through kissing, sharing knives, forks and cups,
toilet seats, swimming pools, and so on. The virus has to pass
from one person's blood to another person's blood.
This chapter
explains the legal and human rights of all people who are living
with HIV or AIDS. Each section in this chapter says what steps
people can take to protect their rights in different situations
At the end
of the chapter there are typical problems people have to face
about HIV and AIDS. We discuss what steps people can take to
deal with each problem, and refer you to the relevant
information in the manual.
HIV/AIDS and the Bill of Rights
Our
Constitution has a Bill of Rights. These rights apply to all
people living in South Africa and they must be respected by the
courts, parliament, private organisations and individual
persons.
The Bill of
Rights includes civil rights such as the right to vote, the
right to freedom of speech, and socio-economic rights like the
right to access to food and health care services.
Socio-economic rights are important because they can help to
improve the living conditions of people living with HIV or Aids.
They say what rights people have to basic health care,
education, social services, shelter, and so on. The government
has a duty to make it possible for people to use their
socio-eonomic rights. But it must do this within its available
resources. In other words, the government must provide what it
can afford. But, if it cannot afford to provide for these rights
immediately, it must show that it has a plan to do so in the
future.
NOTE !
Children living with HIV/AIDS cannot be discriminated against at
school.
Any person
or organisation has the right to go to court to claim or defend
all these rights, either for themselves or for other people.
The Equality Clause
One of the
most important rights in the Bill of Rights is the right to
equality. This is called the 'Equality Clause'.
Under the
Constitution, equality means that everybody shares the rights
and freedoms that are listed in the Bill of Rights.
THESE
REASONS CANNOT BE USED FOR DISCRIMINATION
The Equality
Clause lists 17 reasons that people are not allowed to use to
discriminate against another person. These are: Race, Gender,
Sex, Pregnancy, Marital Status, Ethnic Origin, Social Origin,
Colour, Sexual Orientation, Age, Disability, Religion,
Conscience, Belief, Culture, Language and Birth
The
government has passed a law that will enforce equality. This law
is called the Promotion of Equality and Prevention of Unfair
Discrimination Act (No 4 of 2000). The Act spells out what types
of discrimination is against the law and how people can be
compensated if they have been discriminated against.
The Equality
Act does not list HIV/AIDS status separately as a ground for
non-discrimination on the basis of disability. But the Act does
recognise that HIV/AIDS status leads to discrimination. It says
the courts must decide in each case whether HIV/AIDS should be
regarded as a dis-ability or as discrimination as a separate
ground.
Does the equality clause protect people Living with HIV or AIDs?
The Equality
Clause says that people with disabilities should not be
discriminated against. The question is : is living with HIV or
AIDS a disability? Disability is not the same as incapacity
which means that a person cannot do a job properly
Some people
say HIV and AIDS should be protected on grounds of disability
under the equality clause and Equality Act because:
·
People with
HIV have a medical condition that may affect their day-to-day
activities, even when they do not look or feel ill. This is a
disability.
·
People with
HIV often face discrimination that makes it more difficult for
them to live and work together with other people.
People with
disabilities are generally discriminated against in our society.
But people living with HIV or AIDS are disabled by a condition
or illness that makes them suffer the same kinds of handicaps or
discrimination which other people with disabilities experience.
Attitudes from people in society and restrictions in employment
are two examples of this. . So, people living with HIV or AIDS
need to be protected from discrimination in the same way as
other people who are disabled.
Some people
also believe that HIV should be treated as a separate listed
ground for non-discrimination under the Equality Act because:
·
people
living with HIV or AIDS are discriminated against in many of
ways
·
it would be
easier to show in court that a person was unfairly discriminated
against on grounds of their HIV or AIDs status
·
they could
claim unfair discrimination on grounds of their HIV/AIDS status
and on grounds of disability.
Protecting rights
Protecting
and enforcing your rights means using and claiming your rights
to protect yourself. People can do this by going to court, or to
other bodies such as the Public Protector, the Equality Court
and the South African Human Rights Commission.
WHAT THE RIGHTS MEAN FOR PEOPLE LIVING WITH HIV OR AIDS
|
Section in the
Bill of Rights |
RIGHT |
WHAT IT MEANS FOR YOU IF YOU ARE LIVING WITH HIV OR AIDS |
|
10 |
Human dignity
Everyone has inherent dignity and the right to have
their dignity respected and protected |
A
person or institution, such as hospital or company, may
not insult or take away your self-respect, by their
words or actions. |
|
12 |
Freedom and security of person
Includes the right to:
-
make decisions about reproduction
-
security and control over your body
-
not be subjected to medical or scientific
experiments without your informed consent
|
You
have the right to take your own decisions about medical
treatment and pregnancy e.g. you cannot be forced to
have an HIV test. You may not be treated in a cruel or
degrading way by any person or institution. |
|
14 |
Privacy
Everyone has the right to privacy. |
You
have the right to keep the fact that you have HIV or
AIDS to yourself. An employer or hospital cannot force
you to tell them, or force you to have an HIV test. |
|
16 |
Freedom of expression
Everyone has the right to freedom of expression, which
includes freedom to receive or impart information or
ideas. |
Proper information can be made available in schools or
prisons about how to prevent HIV. |
|
18 |
Freedom of association
Everyone has the right to freedom of association. |
You
can join any organisation you choose. You cannot be
forcefully separated from other people. |
|
21 |
Freedom of movement and residence
Everyone has the right to:
-
move about freely
-
enter, remain in or leave the country
-
reside anywhere in the country
|
You
are free to move around the country. You cannot be
forced to live in a separate place, away from the rest
of society. |
|
22 |
Freedom of trade, occupation and profession
Every citizen has the right to choose their work freely. |
You
can choose what kind of work you want to do e.g. you may
not be told that you cannot be a teacher or a health
care worker. |
|
23 |
Labour relations
Everyone has the right to fair labour practices. |
You
may not be unfairly discriminated against at work. |
|
24 |
Environment
Everyone has the right to an environment that is not
harmful to their health or well-being. |
This
right may be important for people living in a state
institution such as a prison or psychiatric hospital. |
|
26 |
Housing
Everyone has the right to have access to adequate
housing. No-one may be evicted from their home, or have
their home demolished without a court order. |
You
may not be refused a subsidy or loan to buy a house
because you have HIV or AIDS. It is unlawful to evict
you from your home because of your health. |
|
27 |
Health care, food, water and social security
No-one may be refused emergency medical treatment.
Everyone has the right of access to:
-
health care services, including reproductive care
-
social security, including appropriate social
assistance if they are unable to support themselves
and their dependants
|
Hospitals or medical people cannot refuse to treat you.
You have the right to a disability grant if you are too
ill to support yourself or your family. |
|
29 |
Education
Everyone has the right to a basic education, including
adult basic education. |
You
have the same right as anyone else to education. A
school cannot refuse to educate you or your child
because you have HIV or AIDS. |
|
32 |
Access to information
Everyone has the right to see any information held by
another person that they need in order to exercise or
protect their rights. |
If
for example you feel your rights are being violated
because of a company policy, you can demand to see the
policy and may then challenge it in court. You have the
same right with private institutions or the state , for
example an organisation, or your medical records at a
state hospital. |
|
33 |
Just
administrative action
Everyone whose rights have been negatively affected by
administrative action, has the right to be given written
reasons. This includes reasons for very long delays. |
If
you believe that you are being refused a social service
(e.g. a house or education) for unjust reasons, you can
demand to get the reasons in writing. You may then
decide to challenge the decision. |
|
35 |
Arrested, detained and accused people
Everyone who is detained, including every sentenced
prisoner, has the right to conditions of detention that
are consistent with dignity. |
Prisoners cannot be discriminated against or treated in
an undignified way just because they have HIV or AIDS. |
Acknowledgements, HIV/AIDS & The LAW: A Resource Manual, 2nd
edition.
The Aids Law Project & The Aids Legal Network
Health and Medical Rights
Many people
living with HIV or AIDS complain that they are treated badly at
hospitals and clinics. Sometimes medical staff even refuse to
treat patients who have HIV or AIDS. People also complain that
information about their illness is not kept confidential.
Health care
workers also have rights, including the right to a safe working
environment, while patients have rights to:
·
confidentiality
·
testing for
HIV and informed consent
·
medical
treatment.
Confidentiality
Confidentiality means that doctors, nurses, psychologists,
dentists and other health care workers have a moral and legal
duty to keep all information about patients confidential. Any
information about the patient's illness or treatment cannot be
given to another person unless:
·
the patient
consents (agrees) to this
·
the
information is about the illness or treatment of a child - then
health workers can tell others but only with the permission of
the child's parent or guardian
·
the patient
is dead - then the doctor must get permission from the
next-of-kin (the person's closest family)
|
EXAMPLE
In
the well-known McGeary case, the Supreme Court of Appeal
said that a doctor cannot tell other doctors about the
HIV status of a patient without the patient's consent.
Mr
McGeary applied for a life assurance policy. The
insurance company told him to have an HIV test before
they could approve his application. The doctor got the
results of the test told McGeary that he was HIV
positive.
The
next day the doctor played golf with another doctor and
a dentist. During the game they discussed AIDS and
McGeary's doctor told the other two that McGeary was HIV
positive.
The
news of McGeary's condition spread around the small
community. McGeary began a civil claim to get
compensation from his doctor for breaking his rights to
confidentiality. The Court said the doctor had to pay
McGeary compensation for breaking his right to
confidentiality. |
SOME RULES ABOUT CONFIDENTIALITY
Telling other health care workers
A health
care worker must get a patient's permission before giving any of
that patient's medical information to another health care worker
or to another health care centre.
Telling a patient's sexual partner
A health
care worker may not tell the patient's sexual partner that the
patient has HIV, unless the partner appears to be at risk
because the patient refuses to practise safer sex. The health
care worker must counsel the patient on the need to tell their
sexual partner and to practise safer sex. The health care worker
must then warn the patient that if he or she does not tell their
sexual partner or practise safer sex, then the health care
worker will have to tell the partner about the person's HIV
status.
Telling a court
A court can
order a health care worker to give them confidential
information.
HIV/AIDS AS NOTIFIABLE DISEASE
A notifiable
disease means that health care workers have to keep statistics
about the number of cases they see, and inform the health
authorities. Because AIDS is not a notifiable disease, a health
care worker does not have to report it to the health authorities
when a person is diagnosed with AIDS or when someone dies of
AIDS The Department of Health sent out draft regulations in
April 1999 to make Aids a notifiable disease but these have not
been passed as law.
CONFIDENTIALITY AND OPENNESS
HIV/AIDS is
often not an open issue, mainly because people living with the
disease fear the negative label society gives to it and the
discrimination that they may suffer. This makes it very
difficult for them to come forward and tell others about their
illness. People should be encouraged to be open about their HIV
status, so that society becomes less prejudiced and more aware
of the epidemic.
Being open
about your HIV or AIDS status means that you choose to tell
certain people, but you do not lose your right to
confidentiality with a doctor, nurse, health care worker or
employer, for example. Your personal right to privacy and
confidentiality must still be respected. It is your choice to
tell others, and to choose who tell.
NOTE !
Being open about your HIV or AIDS status does not mean that you
lose your right to confidentiality with a doctor, nurse, health
care worker, or employer, for example. Your personal right to
privacy and confidentiality must still be respected.
What can you do if a health care worker abuses your right to
confidentiality?
You can
complain to the Health Professions Council of South Africa
(HPCSA). You can also make a civil claim for damages
(compensation) against the health care worker, hospital or
clinic, or any member of the public who has abused your rights.
The HPCSA
has published ethical guidelines on the treatment and management
of patients with HIV. You can contact them for information on
these guidelines.
HIV testing and informed consent
Every person
has the right to privacy, dignity, respect, to make their own
decisions and to protect themselves from harm done by others.
This means
that each one of us has the right to have our own decisions
about our body treated with respect. In other words, no patient
can be given medical treatment without their consent.
Consenting
to medical treatment has two parts to it: information
(understanding) and permission (agreeing) This means you:
·
understand
the type of treatment that you are going to get
·
give your
permission for the treatment
With an HIV
test, you must know what the test is, why it is being done and
what the result will mean for you before you agree to the blood
sample being taken. This is called pre-test counselling. After
the HIV test results have been received you must be counselled
again to help you understand and accept the effect that a
negative or a positive result will have on your life. This is
called post-test counselling.
|
EXAMPLE
Thami is a care-giver in a children's home. The matron
informs him that all staff in the hospital must have a
Hepatitis B test.
Thami agrees to this. But, the hospital does an HIV test
too, saying it saves time and money to do both tests at
the same time. The matron tells Thami he is HIV
positive. Thami is furious because he only gave
permission for the Hepatitis B test.
The
matron did not have a right to do the test. She should
have discussed it with Thami first and obtained his
consent. |
The
Department of Health's National policy on Testing for HIV (2000)
says the patient should:
·
understand
and be aware of the test
·
know the
benefits, risks, alternatives (other choices) and social
implications of the test result
Some rules about HIV testing and consent
Here are
some rules to remember :
·
You do not
have to sign a written consent form before an HIV test, you can
give verbal consent.
·
If you go to
hospital, you cannot be tested for HIV without your knowledge.
·
If a
hospital has wall posters saying they do HIV testing on all
patients, this does not mean every patient has given consent to
the test.
Exceptions to the rule of informed consent
These are
the only exceptions to the rule that a person must give their
consent to treatment or an operation:
·
if a patient
needs emergency treatment
·
testing done
on blood donations
·
mentally ill
patients
In this case the mental hospital must get permission from one of
the following people: the patient's husband or wife, parent,
child (if the child is 21 or older), brother or sister.
·
HIV tests
are routinely done on the blood of all pregnant women for health
research, but the name of the woman is not attached to the blood
sample, so no-one knows whose blood it is.
Who can give
consent?
Adults who
are of sound and sober mind can give consent to medical
treatment. Children over 14 can also give their own consent to
medical treatment.
What can you
do if an HIV test was done without your consent?
If an HIV
test was done without consent, your rights have been abused.
You can
complain to the Health Professions Council of South Africa
(HPSCSA). You can also bring a civil claim for invasion of
privacy, and a criminal charge of assault against the health
care worker or the person they were acting on behalf of.
|
CASE STUDY
In
the case of 'A' v South African Airways (SAA), in the
Johannesburg Labour Court, 'A' had applied for a job
with SAA as a cabin attendant. He was asked to sign a
consent form for an HIV test, but the test was not
explained to him.
'A'
was therefore tested without informed consent and
without any pre- or post-test counselling.
SAA
admitted that they had not followed the rules regarding
testing and informed consent. The court ordered them to
pay compensation to 'A' |
The right to health care and medical treatment
The
Constitution gives every person the right of access to health
care services and medical treatment. This includes having access
to affordable medicines and proper medical care.
For many
people the new Medicines and related Substances Control
Amendment Act of 1997 (Medicine's Act) will help towards making
medicines more affordable for people.
The
government is obliged to improve access to health care services,
including essential medicines. The Treatment Action Campaign
(TAC) has been lobbying and taking legal action to have cheaper
HIV/AIDS drugs imported into South Africa.
Government
has a responsibility to promote the nation's health. It must
provide fully-staffed hospitals and clinics, as well as
medicines, to give health care services to everyone.
The right to
access to health care services includes the right to proper care
from a health care worker. It is against the law for a health
care worker to :
·
refuse to
treat a person because they have HIV
·
treat people
with HIV differently to other patients.
The
Department of Health has developed policy guidelines for
managing and treating patients with HIV/AIDS. Every patient
living with HIV/-AIDS has a right to these treatments.
If a
hospital or clinic refuses to treat someone living with HIV/
AIDS, they can be reported to the Department of Health or the
Public Protector. The case can also be taken to the High Court,
which can review and cancel the hospital's decision to refuse to
treatment.
Rights at work
Laws that give people rights at work
Workers
living with HIV/AIDS are often discriminated against by their
employers, supervisors or colleagues (other employees). The
following are some of the different laws that give people rights
at work.
The
Constitution
The
Constitution gives all employees the right to be treated fairly
at work. The Bill of Rights says:
·
everyone has
the right to fair labour practices
·
everyone has
the right to equal treatment, and there can be no discrimination
against a person because they are a woman, disabled, old, and so
on
The Labour Relations Act (LRA)
The LRA
gives employees the right to be treated equally. It is an unfair
labour practice to discriminate against an employee on any
grounds, including, race, gender, sex, colour, sexual
orientation, age, disability, religion, conscience, sexual
orientation, belief, political opinion, culture, language,
marital status or family responsibility.
Discrimination is 'automatically unfair' if it breaks any of the
basic rights of employees. If a person is discriminated against
because of their disability for example, this is automatically
unfair and the case will go to the Labour Court. (See case-study
overleaf Hoffman v South African Airways, 2000.)
The Employment Equity Act (EEA)
The
Employment Equity Act of 1998 aims to create equality in the
workplace by prohibiting unfair discrimination on the same
grounds listed in the Constitution and the Labour Relations Act
(LRA). Both the Constitution and the LRA protect people living
with HIV/AIDS from being treated unfairly in at work, because
both laws say it is against the law to unfairly discriminate
against a person with a disability.
The EEA is
more specific about the rights of people living with HIV or
AIDS. The EEA explicitly prohibits unfair discrimination against
people at work on grounds of their HIV status.
The EEA
prohibits testing for HIV in the workplace unless this is
authorised by the Labour Court. If any employer (state or
private) wants to test a person for HIV before employing
her/him, they will have to get permission from the Labour Court
to do this.
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CASE STUDY
Hoffman v South African Airways (2000)
Mr
Hoffman applied for a job as a cabin attendant with
South African Airways (SAA) and was asked by SAA to go
for an HIV test. The test showed that he was HIV
positive. SAA refused to give Mr Hoffman the job
because, they said, part of his job involved travelling
to different countries and he would need to have a
yellow fever vaccination. It is not advisable for
someone with HIV to have these vaccinations. SAA said
that this was an inherent requirement of the job
(essential for the job) in the airline and therefore
they couldn't employ him.
The
case was referred to the Constitutional Court. The court
was asked to decide if SAA had gone against Hoffman's
rights to equality, dignity and fair labour practices.
The
court decided:
-
that SAA had discriminated against Hoffman
-
the discrimination was unfair and infringed his
dignity
-
being HIV negative was not an inherent requirement
of the job of being a cabin attendant; they should
have taken greater steps to investigate how
Hoffman's immune system could have dealt with
travelling and the possibility of getting a strange
disease.
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The EEA
doesn't cover members of the South African National Defence
Force, the Secret Service or the National Intelligence Agency.
But members of these organisations can still take their cases to
the Constitutional Court.
The Occupational Health and Safety Act and Mine Health and
Safety Act
Sometimes an
accident at work can cause a bleeding injury. If the injured
person is HIV-positive and someone who tries to help him or her
also has an open wound, there is a small chance of the helper
becoming infected if his or her wound comes into contact with
the injured person's blood. The employer has a responsibility to
make sure that the workplace is safe and that employees are not
at risk of HIV infection at work.
There are
new regulations issued by the Department of Labour which say:
·
employers
must keep rubber gloves in the first aid box
·
all staff
must be trained so that they know what safety measures to take
if an accident happens
Compensation for Occupational Injuries and Diseases Act (No 130
of 1993) (COIDA)
COIDA gives
employees the right to compensation if they are injured or
become ill at work. If you get infected with HIV because of a
workplace accident, you can claim for compensation.
The Medical Schemes Act No 131 of 1998 and Regulations:
Government Gazette 20556, 20 October 1999
Medical aid
as a form of insurance is an important employee benefit in the
workplace. In the past, the majority of medical schemes refused
to cover illnesses that were linked to HIV infection.
The Medical
Schemes Amendment Act of 1998 prohibits discrimi-nation on the
grounds of 'state of health'. This covers a person living with
HIV or AIDS. It means that the medical scheme cannot refuse to
cover reasonable care that could prolong the health and lives of
people living with HIV or AIDS
The Medical
Schemes Act came into operation on 1 January 2001. The Act stops
medical schemes from discriminating against people living with
HIV or AIDs by saying:
·
the Medical
Aid Scheme may not be registered if it discriminates directly or
indirectly against any person on the basis of their health
status
·
all schemes
must offer a minimum level of benefits, decided by the
government, to employees with HIV or AIDS. The minimum levels of
benefits include:
·
treating all
opportunitistic infections for HIV or AIDS
·
hospital
admissions with treatment
·
they do not
have to provide anti-retroviral drugs
Some rules about HIV/AIDS and rights at work
The
Employment Equity Act prohibits testing for HIV in the workplace
unless this is authorised by the Labour Court. An employer
cannot :
·
force a
person who is applying for a job to have an HIV test
·
automatically make an HIV test part of a medical examination
·
force
someone who is already working for them to have an HIV test
Other rules
that apply are :
·
A person who
is HIV positive does not have a duty to give this information to
his or her employer because of their right to privacy.
·
If you tell
your employer about your HIV status, the employer cannot tell
anyone else without your consent. If the employer tells anyone
else, this is breaking your privacy and right to
confidentiality, and it is possibly an unfair labour practice.
·
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 employer
cannot demand to know if the cause of an illness is HIV
infection.
·
An employer
cannot refuse to employ you because you have HIV.
·
An employer
cannot dismiss you because you have HIV.
·
An employer
cannot dismiss you because you have HIV, even if other employees
refuse to work with you.
·
The
Promotion of Equality and Prevention of Unfair Discrimination
Act also protects an HIV-positive person from unfair
discrimination in the workplace.
Code of Good Practice on HIV/AIDS and employment
The
Department of Labour has published a 'Code of good practice on
key aspects of HIV and employment under the Employment Equity
Acts. This Code gives employers and trade unions guidelines to
ensure that people who are HIV-positive are not unfairly
discriminated against in the workplace. This includes provisions
dealing with:
·
creating a
non-discriminatory work environment
·
HIV testing,
confidentiality and disclosure
·
providing
equitable employee benefits
·
dismissals
·
managing
grievance procedures
The Code
also provide guidelines for employers, employees and trade
unions on how to manage HIV/AIDS in the workplace. This is based
on the fact that the HIV/AIDS epidemic can affect the workplace
and people working there on a number of different levels. These
guidelines look at the problem as a whole. It requires people to
take all factors into account when managing HIV in the
workplace, for example:
·
creating a
safe working environment for all employers and employees
·
developing
procedures to manage occupational incidents and claims for
compensation
·
introducing
measures to prevent the spread of HIV
·
developing
strategies to assess and reduce the impact of the epidemic on
the workplace
·
supporting
individuals who are infected or affected by HIV/AIDS so that
they can continue to work productively for as long as possible
For a copy
of the Code, see website: www.labour.gov.za/docs/aids/index.htm
What happens if you become too ill to work?
NOTE !
Eventually, many people with HIV start to become ill and their
capacity to work is affected. In other words, because of their
illness they are not able to do the job properly. So, the
employer can dismiss them (including a person with AIDS) on
grounds of incapacity.
All
employees have a right to sick leave and an employer has no
right to discriminate against or dismiss an employee who uses
these rights. The Basic Conditions of Employment Act says an
employee can have 6 weeks paid sick leave over any 3-year cycle.
But, an
employer is allowed to dismiss an employee on grounds of
incapacity and poor work performance, even if the employee has
not used all their sick leave. This means, if an employee is
unable to do their job properly because of their illness then
the employer will eventually be able to dismiss them.
There are
very clear guidelines for employers to follow when they want to
dismiss an employee for incapacity. For example, the employer
must see whether the incapacity is going to be permanent and
must also investigate alternative employment. for the employee.
What can you do to protect your rights at work?
Employees
can take disputes about dismissals or discrimination to a
Bargaining Council or the Commission for Conciliation, Mediation
and Arbitration (CCMA). The Bargaining Council or CCMA will try
to settle the dispute by conciliation, mediation or arbitration.
Cases about
unfair discrimination and automatically unfair dismissal will be
referred to the Labour Court. Employees can appeal against
decisions of the Labour Court by going to the Labour Appeal
Court.
SUMMARY OF RIGHTS OF EMPLOYEES WITH HIV OR AIDS
|
Right to fair labour practices |
The
Constitution
The Labour Relations Act (LRA) |
|
Right not to be unfairly dismissed because you have HIV |
The
Labour Relations Act (LRA) |
|
Right not to be unfairly discriminated against on the
basis of your HIV status |
Employment Equity Act (EEA) |
|
Right not to be tested for HIV unless your employer has
applied to the Labour Court for authorisation |
Employment Equity Act (EEA) |
|
Right to a safe working environment |
Occupational Health & Safety Act, and Mine Health &
Safety Act |
|
Right to compensation if infected with HIV at work |
Compensation for Occupational Injuries and Diseases Act
(COIDA) |
|
Right to certain basic standards of employment,
including 6 weeks of paid sick leave over a 3-year
period |
Basic Conditions of Employment Act (BCEA) |
|
Right to no unfair discrimination in giving employee
benefits |
Medical Schemes Act |
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