You may not discriminate unfairly against someone because of their HIV status. In Hoffman v South African Airways, the Constitutional Court decided that the employee's HIV status was not a threat to the passengers. So, South African Airways had to appoint him as a flight attendant.
In terms of HIV, you may not conduct any testing on employees or applicants.
But, if it rules testing justifiable, the Labour Court can allow it.
Here's what you need to know about HIV testing:
Last year, Government implemented over 70 changes to three of SA's most crucial labour Acts.
Among them were:
• When and how to issue employees with a fixed-term contract.
• Unfair discrimination and your employees' pay cheque.
• Steps you MUST take before you recruit a non-South African citizen.
• Labour brokers and the only time you can use them.
• And so many more.
How sure are you your HR department's current processes aren't a lawsuit waiting to happen?
How certain are you that one small oversight won't end up costing your company R2.7 million in fines?
How confident are you that you won't land at the CCMA defending a case for following a faulty HR process?
Don't take a chance when you don't have to.
As was stated earlier, the Labour Court can give authorisation for you to carry out HIV testing, provided that they are justifiable.
The Court can decide on the period of authorisation as well as the categories of employees for testing.
For example, you may want to start a programme for anti-retroviral treatment. The Court can then give authorisation, but may also insist on pre- and post-counselling.
Also, it is important to keep in mind that confidentiality is very important!
The Court also states that you are allowed to carry out voluntary testing, but that all results must be kept strictly confidential. On top of that, employees who don't want to be tested may not be victimised in any way.
It is worth noting that some companies carry out testing without approval from the labour courts. But employees and unions don't mind as long as the reasons for the testing are in good faith. An example being an ARV programme for employees.
To learn more, click below…
Protect yourself from labour-related problems by using this practical tool
The comprehensive Labour Law for Managers Loose Leaf Service gives you all the details you need for maximum protection in labour-related problems. You will find, for example:
• Information on the problem areas managers have to handle in the workplace daily, and appropriate solutions;
• Valuable advice for employers, based on the ever-changing legislation;
Sample contracts, dismissals
and warning letters, etc;
• Numerous practical checklists; and
• Much more…