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“The only thing necessary for these diseases to the triumph is for good people and governments to do nothing.”


   


 

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.

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.

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

Right to fair labour practices

LAW

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