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Can you test your employees for HIV and Aids? Here's what the law says...

by , 08 November 2013
You have to thread very carefully when dealing with HIV and Aids in the workplace. This is especially important when it comes to testing your employees. One wrong move and you could be facing a serious labour dispute. Don't take that risk! Find out what the law says about testing your employees for HIV and Aids.

You must adhere to what the Code of Good Practice on HIV and AIDS and the World of Work says when dealing with HIV and Aids in the workplace.

So what does the Code say about testing your employees for HIV and Aids?

What you need to know when testing employees for HIV and Aids

Testing employees for HIV and Aids is a sensitive issue.
Why?

Because testing has the potential to unfairly discriminate against employees (or people applying for jobs).

Important: You can't make the decision to test employees on your own. You have to apply to the Labour Court for permission to test the HIV status of your employees. The Court will then decide whether or not the testing is justifiable.

Are there any circumstances where you don't need to apply to Court before testing employees for HIV and Aids?

Yes.

The Health & Safety Advisor explains that the Court in Irvin & Johnson Ltd v Trawler and Lion Fishing Union and Others ruled that you don't need to apply to Court to test if the testing is:

  • Voluntary; and
  • Anonymous.

Remember, testing can only be voluntary if there's informed consent.

You (employer) CAN'T force your employee or candidate to undertake an HIV test in order to ascertain his HIV status.

The Court has said three things are required for informed consent:

  1. Your employee must understand why the test is done.
  2. Your employee must be aware of the possible risks and consequences of the test (what a positive result would mean.)
  3. Your employee must have access to counselling both before and after the test.

That's not all.

Even if your employee gives permission for testing, the Court can still set conditions, such as:

  • What counselling you'll provide to your employee.
  • Maintaining confidentiality (you might not need to know exactly who's infected, just how many people are, or you might be told not to disclose who's infected to third parties.)
  • Testing is only allowed for a specific reason and for a limited time. For example, your company runs an internal 'Know your status' campaign or a voluntary counselling and testing campaign or prevalence study.
  • You can only test certain categories of jobs or employee.
  • You must offer testing on site to everyone, not just a limited category (to make sure you don't discriminate against one category).

Warning: You can be sued for breach of confidentiality.

When you've conducted tests, keep your employees HIV status confidential.

'You can't disclose this information to ANYONE without the verbal, but preferably written consent of the person who is HIV positive,' warns the Advisor.

Now that you know what the law says about testing your employees for HIV and Aids, make sure you comply.

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