BONELA POLICY PAPER ON HIV/AIDS AND EMPLOYMENT
8th and 9th of October 2002 the Botswana Network on
Ethics, Law and HIV/AIDS (BONELA) in partnership with the Botswana
Federation of Trade Unions (BFTU) held a drafting workshop on HIV/AIDS,
human rights issues and employment. Representatives from trade unions; staff
associations; the private sector; non-governmental organizations, including
Emang Basadi and the Botswana Network of People Living with HIV/AIDS (BONEPWA);
several government departments, including the Labour Department, NACA and
AIDS/STD Unit, came together at the Botswana National Productivity Center (BNPC)
to work on a draft policy framework as well as identification of key
principles for future labour legislation that specifically addresses issues
of HIV/AIDS and human rights at the workplace.
for this workshop developed out of a previously held workshop on HIV/AIDS,
Employment and Human Rights, which was organized by BONELA in May 2002. One
of the recommendations from that workshop was to determine the gaps and
weaknesses in the existing legislation and policies and formulate a draft
policy framework on HIV/AIDS in the workplace that could be transformed to
18th, 2003 BONELA, in partnership with the Botswana Council of
Commerce, Industry and Manpower (BOCCIM) organized a breakfast seminar with
several members of the Private Sector in Botswana to garner their input and
comments on the draft policy that was produced at the workshop in October
2002. The general comments from the private sector participants on the draft
policy were that it was very worker-centered. Their ultimate aim was to
have the voice of employers represented in the policy and to ensure that
their concerns were adequately represented.
Botswana developed the Botswana National Policy on HIV/AIDS, which focuses
on prevention and care and adopts a multi-sectoral approach to the HIV/AIDS
epidemic in Botswana. The policy, which was revised in 1998, further
addresses HIV/AIDS and Employment and acknowledges the workplace as playing
a central role in the lives of young and middle aged adults. It formulates
principles with respect to the workers infected with HIV such as
confidentiality of personal information regarding HIV status and HIV
infection to be treated as any other illness in the workplace.
Botswana National Policy on HIV/AIDS is in the process of being revised and
the experience gained at these workshops by the participants, who are the
key stakeholders in developing this policy document, will assist this
In a broad
sense, HIV/AIDS affects the workplace in many aspects: it affects
productivity; it can increase business costs, and affect the national
economy. Productivity is reduced because of increased absenteeism and low
employee morale. Business costs are increased because of increased benefits,
increased amounts of sick pay, as well as the cost of replacing workers as
others become too sick to work, or die. The effect of HIV/AIDS on the
Botswana economy is speculative. A report by the Botswana Institute for
Development Policy Analysis (BIDPA) on the Macroeconomic Impacts of HIV/AIDS
in Botswana, suggested that in 25 years time the economy of Botswana will be
31% smaller than it would otherwise have been if AIDS did not exist.
smaller scale, employer and employee relations in the work place are
constantly being challenged by the HIV/AIDS epidemic. Workers who suffer
from HIV related illnesses or who are infected with HIV face undue
stigmatization and discrimination in the workplace, by both their fellow
employees and their employers. There have been reported cases of arbitrary
dismissal on medical grounds, and forced testing of employees by employers.
Additionally, workers whose lives are affected by HIV/AIDS have to take
increased leave time; both sick leave and compassionate leave as the number
of funerals in Botswana continue to rise. If we are to effectively deal with
HIV/AIDS in the workplace, there are needs to be a policy that both
employers and employees can refer to when they are faced with these issues.
misunderstanding of HIV has lead to other questionable employment practices
in Botswana such as pre-employment testing, screening and shared
confidentiality. The concerns of the employer with regards to retaining
staff and recruitment of employees who are capable of performing the tasks
they are assigned, must be balanced with the concerns of the employees of
maintaining confidentiality, protection from discrimination and protection
of their employees benefits.
Transmission of HIV in the workplace is very rare even in high-risk
professions such as doctors and emergency medical workers. However, there is
still a need for all members of the workplace to be aware of how to prevent
accidental transmission as well as being equipped (intellectually and
practically) to practice universal precautions if a workplace accident
should occur. Although transmission at work is rare, there are specific
populations and specific types of employment that, due to certain social and
environmental factors, carry a higher risk of HIV transmission. Employers
need to recognize this and make adjustments in their policies to accommodate
for it as well as provide opportunities for their employees to learn more
about the virus for education and prevention purposes.
relating to HIV in the workplace are a global problem; it is not
specifically a problem for Botswana. However, given the prevalence of HIV
in Botswana, it presents a more urgent problem then in other areas of the
world. The following key principles have been developed specifically for
Botswana given the current context, but they have taken into account a
number of policy guidelines and best practices from various other regional
and international sources. Through this integrated approach, we have
hopefully developed a set of key principles that will work for both
employees and employers in Botswana, as well as providing guidelines for
organizations and companies to develop their own individual HIV policies.
problem areas that were identified by stakeholders at the Drafting Workshop
on Employment and HIV/AIDS are the following:
1. Pre- and
post-employment mandatory testing of workers;
of confidentiality, shared confidentiality and lack of informed consent;
Vulnerable groups at the work place;
Discrimination and victimization of HIV infected workers;
5. Lack of
job security/employment protection for HIV infected/affected workers;
Insufficient care and support for workers;
inequality and disempowerment of women; and
Prevention of HIV/AIDS at workplace (education and occupational hazards)
following are key principles that were identified by stakeholders:
and job security of infected and affected workers;
Prohibition of testing
for HIV/AIDS for purposes of recruitment, promotion or
personal information including medical information;
HIV infected workers;
Care and support for
HIV infected workers;
Gender equality and
Prevention of HIV at
the workplace; and
Provision of education
and awareness programs.
and Job Security of Infected and Affected Workers
prevalence of HIV infections in Botswana has lead, in a lot of cases to
employees overextending their allotted leave days. This is due to illness,
visits to medical practitioners, taking care of sick relatives and attending
been limited allowances for people who need to exceed their allowable number
of leave days; this is strikingly obvious in the private sector where the
leave allowances are less generous than the public sector. There have been
instances where such employees have been dismissed from their posts for
misconduct because they have missed too many days, or they have been
dismissed because they are too ill to continue in the position for which
they have been hired.
costly for employers to re-advertise, re-hire, and re-train new employees to
cover staff losses with regards to HIV/AIDS and other illnesses. This leads
to increased operating costs and reduces efficiency and productivity.
is often said that HIV should be treated as any other terminal or chronic
illness, this cannot be done at the expense of understanding the unique
social situation, which HIV presents. Legislation is required to
specifically protect PLWAs because of the stigma associated with HIV/AIDS.
Principle: Employers should not terminate the employment of an employee on
the diagnosis of a chronic or terminal illness.
Principle: Employers should reasonably accommodate leave requirements of
workers who are infected and affected by chronic illnesses.
(“Reasonable” would be defined in the regulations after legislation is
drafted, but is generally considered to be what a regular man or woman on
the street would consider reasonable.)
strategies can only be employed if the employer is aware of the status of
the employee. If the employee refuses to disclose the reasons for his/her
increased absence or leave requirements he cannot reasonably be expected to
be protected under this key principle. However, the employer is responsible
for creating an environment where the employee would feel safe to disclose
his/her status without fear of termination, discrimination, or barred access
to promotion and training.
government should compel the employer to comply with the policies on
HIV/AIDS and employment.
should introduce flexible leave policies where possible to accommodate their
workers. They should also consider options such as: flexible work hours,
rest time, time-out facilities or job sharing opportunities, where such
options are feasible.
should offer an alternative employment opportunity or a transfer to lighter
duties where these opportunities are available, in the event that an
employee becomes medically unfit to fulfill the agreement of their original
should ensure that they create a safe and open environment in the workplace
so employees and employers can communicate their issues and needs with each
other to ensure that they are both reasonably accommodated.
should be an introduction of a medical board under the Employment Act for
medical assessments of workers in the private sector for fitness to work. In
the absence of a medical board, a medical practitioner should be agreed upon
by both parties and there should be an allowance for a second opinion before
a decision about retirement on medical grounds can be made.
employer should consider giving an employee suffering from chronic illness
[Suggestion from the Private Sector, that a second opinion can be sought at
the cost of the employee] What does international law say about this?
principles are supported by the ILO Code of Practice on HIV/AIDS in Section
5.2.(j), by the Industrial Court of Botswana’s decision [ref. Case No. IC
64/98 and IC 68/97] which state you can not dismiss someone strictly on
medical grounds, and the National Industrial Code of Practice, s47.)
for HIV/AIDS for purposes of recruitment, promotion or other benefits
One of the
major barriers in developing an effective response to HIV/AIDS to date, and
an area that has been largely neglected within Botswana and internationally,
is integrating legal, ethical and human rights issues into the national
of the rights of PLWAs is a fundamentally important principle from a legal
perspective, but also from a public health perspective. The public health
rationale for the incorporation of human rights into the response to HIV is
that it assists in creating an environment within which individuals are more
empowered to protect themselves against the infection. By not forcing
people to test, we allow them to feel safe and protected and prevention
strategies become more effective as people are more apt to access them.
rationale for mandatory testing is strictly limited, especially in the
context of employment. If people are forced to undergo mandatory testing
they become frightened and stay away from medical facilities. It creates
fear and resistance and is counterproductive to the aims of HIV/AIDS
prevention and improved care and does not help control the epidemic.
testing is also prohibitively costly on a wide scale and therefore is
difficult to justify due to the narrow confines in which HIV is transmitted.
There is no risk of acquiring or transmitting HIV between workers except for
medical officers and police dealing with emergency accidents, and this risk
is negligible if the proper precautions are taken.
concern with pre-employment testing, or testing for the purposed of training
and promotion is that testing can only determine your present HIV status.
It cannot predict that a person will never contract HIV in the future, or
could even conceivably be in the window period. Especially, in the context
of Botswana where 30% of the entire population is HIV positive, it is not
inconceivable that employers who attempt to screen their prospective
employees for HIV will still end up with a high HIV prevalence in their
Principle: Testing for HIV for the purposes of consideration for employment
or, promotion should not take place.
training can take place, given the length of the training and the cost of
the investment is substantial enough to warrant the precaution. The scale
on which cost/time would be weighed will be developed with input from
international labour experts and local counterparts. This should be
discussed by the legislatures first.
testing should be encouraged (preferably outside the workplace) and
counseling within the workplace should be made available for workers. The
employer should provide pre- and post-test counselling services when a
worker consents to undergo testing for the
may conduct anonymous unlinked testing on workers to determine the impact of
HIV on the organization’s future. In situations, where the business is too
small to allow for anonymous unlinked testing, companies could join forced
(i.e. the Printing industry) and test all their employees together to allow
them to have a more specific idea of the impact that HIV will have on their
health rationale for the incorporation of human rights into the HIV response
should be incorporated into workplace HIV policies to ensure the creation of
a safe and empowering environment for HIV infected employees.
precautions should be standard training for employees in higher risk jobs
such as the medical profession and police officers. Universal precautions
should also be included in any other workplace training activities and
access to gloves and other prevention paraphernalia should be readily
supported by the ILO Code of Practice on HIV/AIDS section 4.8, and the
International Guidelines on Human Rights and HIV/AIDS, section 16.)
of personal information
strict confidentiality is essential in maintaining healthy working relations
between employers and employees and it also reduces the risk of stigma and
discrimination. If an employee knows that his/her status will be kept
strictly confidential it will be easier for them to disclose their status
and by doing so, it will be easier for the employer to adequately address
the related issues that arise, such as sick leave and flexible working
over health matters is a basic human right and is a fundamental principle of
ethics in medical practice. As HIV/AIDS is not a modifiable disease
under the Public Health Act then a person’s status cannot be disclosed
without his/her consent under ANY circumstances.
have not been keeping the information on the HIV/AIDS status of workers
strictly confidential. Medical information regarding some employees is, in
some cases, easily accessible to other employees at the workplace.
principle of shared confidentiality, as purported by the Botswana National
Policy and the Medical Practitioners Act, whereby medical practitioners may
divulge information to persons having close, regular contact with patient
without patient’s consent is very open to being abused. There is no
effective regulation to ensure that PLWAs are protected from having their
confidential matters divulged without their consent. There is no definition
of ‘close, regular contact’ and who would fall under this category. It is
conceivable that this provision could be extended to include employers
further negating the constitutional right to privacy in Botswana.
Principle: An employer should not disclose any information relating to the
HIV status of any worker acquired in the course of duties without obtaining
the written consent of worker. Shared confidentiality should be restricted
to those people to whom the PLWA has agreed to disclose.
employers should have a HIV/AIDS policy, which protects confidentiality of
all personal information including the HIV/AIDS status of the employee.
practice of shared confidentiality should be removed from public policy and
the strictest confidentiality of PLWAs should be maintained.
should be encouraged to share their HIV status with those people who are in
regular, close contact with them and they should be provided with counseling
and support on the best way to approach this.
supported by the ILO Code of Practice on HIV/AIDS and the International
Guidelines on HIV/AIDS and Human Rights.)
Non discrimination of HIV infected Workers
attached to HIV/AIDS as a disease tends to undermine the human rights of
people living with HIV/AIDS. Workers living with the virus are affected by
discrimination in the workplace because of the stigma attached to HIV/AIDS.
There is a need to reaffirm the rights not to be discriminated against in
general, and in particular the work place.
Principle: There shall be no discrimination based on the real or perceived
HIV status of a worker or his or her family. Any prejudice with respect to
particular job, based on the inherent requirements of the job, shall not be
should develop and implement education programmes on HIV/AIDS at the work
Employment Act should provide for a special provision of non-discrimination
based on state of health due to HIV/AIDS and other chronic illnesses.
should be decisive sanctions or penalties in case of contraventions of
employer should not only reasonably accommodate workers living with HIV/AIDS
but also create an environment conducive to allowing HIV infected workers to
work as long as they are medically fit to work.
supported by the ILO Code of Practice on HIV/AIDS, section 4.2, and the
Botswana Public Service Code of Conduct on HIV/AIDS, and the National Policy
Protection of vulnerable groups
regarding HIV/AIDS undermines the prevention of the spread of the disease.
There is a need to offer specific protection to some groups, which for a
number of reasons are particularly vulnerable to the pandemic. Vulnerability
refers to socioeconomic disempowerment, cultural context, and work
situations that make workers susceptible to the risk of infection. This
includes physical or mental conditions.
affected groups are:
Uniformed forces or disciplinary forces
Principle: The most effective policies and strategies should be applied to
protect vulnerable people in order to reduce transmission of HIV/AIDS.
places, which are prone to accidents, should be exposed to medical services
and other safety facilities like gloves.
and counseling programmes need to be implemented in the work place. In this
case the employers should ensure counseling services to the employees.
programmes, addressing factors, which will increase the risk of infection,
need to be developed by the employer in consultation or/and collaboration
with the workers organizations.
far as possible and as a priority consideration, that spouses are not
separated for long periods of time because of working conditions.
adoption of gender sensitive policies at the workplace and develop
programmes that encourage both men and women to question the unequal power
balance in relationships and to encourage wide debate on cultural issues
that have a negative effect on the status of women.
sexual harassment policies for the workplace.
6. Care and
Support for HIV infected workers
infected with HIV do not receive benefits tailored to meet their needs as
compared to workers suffering from other illnesses.
do not take responsibility to provide for a social security system and to
formulate programmes that provide direct health care to workers suffering
benefits mean care and support services such as health care services,
prevention programmes, provision of protective clothing, counseling and
first aid kits.
Principle: Employers should make reasonable efforts to make comprehensive,
cost-effective and affordable care accessible to people living with HIV/AIDS
in all work places including both formal and informal sectors.
treatment for the worker, spouse and children should be promoted. Where the
worker is single then he/she shall identify a next of kin or any close
relations. There is a corresponding duty on the worker to take
responsibility to educate his/her partners(s).
employer should ensure that there is accessibility to condoms in the work
place. Apart from that, the employer should organize for treatment of
opportunistic diseases on antiretroviral drugs.
should make reasonable efforts to select the most beneficial insurance
scheme for their employees. This should depend on the magnitude or size of
(This is supported by the ILO Code of Practice on HIV/AIDS section 4.3.)
Equality and empowerment
roles and gender relationships make women more vulnerable to infection with
HIV. Women and girls are more likely to be victims of sexual violence and
are not always able to negotiate safe sex practices, even with their
vulnerable to sexual harassment in the workplace, including sexual assault.
practices, including women as the sole caregiver further increases the
women’s burden in the context of HIV.
Principle: Men and women should be given equal opportunity and equal chance
for advancement in the sphere of employment. Sexual harassment should not
of women in skills training and employment should be improved.
employer should create condition that eliminates customs and traditions that
promote the unequal power balance between the sexes in the work place.
partners should recognize that women have been marginalized and formulate
educational programmes to strengthen the women’s confidence in the working
employer should put in place gender sensitive policies and all laws that
discriminate on the basis of gender should be reviewed. (Maternity leave and
BDF employment policies).
harassment in employment should be formally prohibited and facilities to
report cases should be provided.
Prevention of HIV at workplace
Occupational transmission of HIV at the workplace is very rare, even in
high-risk professions such as the medical profession or emergency health
challenge for the workplace with regards to HIV/AIDS is not exposure at
work, but ensuring a conducive working environment for those who are
infected and affected while maintaining an acceptable level of efficiency
need to ensure that employees are well informed about how to prevent
accidental exposure and how to protect themselves in their life outside
Principle: In a workplace where workers are a higher risk to be infected by
HIV or have regular contact with human blood additional medical
services and safety items should be made available. In low risk workplaces,
employers should provide information on how to prevent HIV outside of work.
precautions for HIV prevention should be taught as a standard procedure in
all work places, and especially those that are considered high risk.
employer should ensure access to safety facilities like surgical gloves in
employer should ensure access to condoms in the work place.
about HIV/AIDS should be available at the work place on how to manage
understand the impact of HIV/AIDS. There should also be programmes available
to modify risky sexual behavior.
should be provided together with the promotion and distribution of condoms,
and voluntary HIV testing should be encouraged.
government should put in place education programme that gives priority
HIV/AIDS control and prevention, and this should be adopted by the
supported by the ILO Code of Practice on HIV/AIDS and the National Policy on
HIV/AIDS, section 4.9.)
Recommendations for HIV/AIDS policy with regards to Employment.
The Government of
Botswana should expand the scope of the anti-discrimination clause
(article 1, paragraph 1(b) of Convention 111 to include PLWAs.
The Government of
Botswana should sign and ratify the Convention on Economic, Social and
Cultural Rights and incorporate second and third generation rights into
The Government of
Botswana should sign and ratify all of the relevant ILO conventions. (i.e.
C.158, C.159, C.155, C.166,)
There should be no
disclosure/shared confidentiality of another person’s HIV status unless
required by any other law within the working places.
Domestic Workers, Farm
Workers be included among vulnerable groups. Should be continued efforts
to educate the workers and the employers about their rights and
The rights of children
should be protected in the workplace and that age of work be reviewed
along with other legislation in Botswana and be made consistent with other
pieces of national and international legislation.
Surgical gloves and
condoms to be made standard issue in all private sector and public sector
mechanisms for monitoring standards be strengthened through the Ministry
of Labour and Home Affairs, Staff Associations, and Trade Unions.
Cost sharing should be
introduced with regards to medical aid schemes and treatment between
employers and workers
A contributory fund
should be established to facilitate medical aid scheme.
Workers should be
encouraged to join medical aid schemes.
There should be
provisions in counseling services within each on company or through
established service providers.
Workers should be
encouraged to submit to voluntary testing and counseling and that the
government provides facilities for this.
There is need by the
employer to emphasize the issue of social security, which includes more
than medical aid or free health care.