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Even if your employee consents to HIV testing, the law still has conditions. Know what they are or you'll land up in court

by , 02 December 2014
Offering your employees voluntary HIV testing and counselling (VTC) is an important part of managing HIV. It improves awareness by ensuring employees know their status.

You can't force an employee or job candidate to undertake an HIV test no matter what the circumstances are. But you need to remember that testing is only voluntary if there's informed consent.

So what does getting informed consent from your employee involve? After all, it's not enough for your employee to just say 'okay'.

There are actually three things the Supreme Court requires for informed consent. Without them, you could end up going to court.

To ensure you avoid this, I'm going to tell you exactly what those three requirements are...

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Reduce the impact of HIV on your workforce
How you may ask?
By educating your employees on:
How to prevent HIV;
How to prevent spreading it;
How to work with HIV or Aids; and
How to manage HIV or Aids.
You can minimise the effect their health and HIV status has on your business!

Three elements the Court requires for informed consent for HIV testing at work

1. The employee must understand why you want to do the test. 
2. The employee must be aware of the possible risks and consequences of the test (e.g. what a positive result would mean). 
3. The employee should have access to counselling both before and after the test. 
But that's not all. You see, even if your employee gives permission for testing, the Court can still set additional conditions. 

Here are some of the conditions the Court may set for your at-work-HIV-testing

The court may set conditions such as: 
What counselling you'll provide to the employee. 
Maintain confidentiality. It may restrict you from knowing exactly who's infected and just how many people are. Or it might tell you not to disclose who's HIV+ to third parties. 
It only allows testing for a specific reason and for a limited time. For example, when the company runs an internal 'know your status' campaign, voluntary counselling and testing campaign or prevalence study. 
You can only test certain categories of jobs or employee. 
The Court could say you must offer testing on site to everyone, not just a limited category (to make sure you don't discriminate against one category). 
But remember the most important thing is to keep your employee's HIV status confidential.
This means you can't disclose this information to ANYONE without verbal, but preferably written, consent from your HIV+ employee. 
If you don't follow this rule, your employee could sue you for breach of confidentiality or sue you in your personal capacity. There are a number of organisations that will assist your employee with getting free legal aid in the case of a breach of confidentiality. 
These kinds of court cases could take months to resolve. You'll end up out of pocket for legal fees and whatever the Court makes you pay your employee in compensation. 
If you want to create a VTC programme at your workplace, first ensure you have all the mechanisms in place to follow the Court's instructions to the T so you can avoid this. 
PS. You can find more information about HIV testing at work in HIV – Training in a Box

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