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When can you legally test your employees for HIV?

by , 02 December 2013
World AIDS day has come and gone. Let's see if you were paying attention to the AIDS campaigns this year. Can you answer this question...

Dear Health and Safety Reps

World AIDS day has come and gone. We've had a month of AIDS campaigns, on the radio, TV and everywhere we look. Let's see if you were paying attention to the AIDS campaigns this year. Can you answer this question… 'Are there any circumstances in which you don't need to apply to Court before testing?'

Read on for the answer to this vital employer AIDS question…

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Can you legally test your employees for HIV without applying to the Court?

The answer is yes. The Court confirmed you don't need to apply to test your employees if the testing is voluntary and anonymous, in the legal case of Irvin & Johnson Ltd v Trawler and Lion Fishing Union and Others.

Read on to find out when testing is voluntary and the three elements you need for it to be voluntary.

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When is testing voluntary?

Remember testing can only be voluntary if there's informed consent. No employer may require a worker or an applicant for employment to take an HIV test to ascertain the worker's HIV status.

What does giving informed consent involve? The Court has said three things are required for informed consent.

Three elements required for informed consent conditions of voluntary testing
  1. Your employee must understand why you're doing the test;
  2. You must make sure your employee is fully aware of the possible risks and consequences of the test – what a positive result would mean; and
  3. Your employee should have access to counselling both before and after the test.

There are very strict laws in place when it comes to HIV and testing your employees. Make sure you abide by them and be very clear as to why you're testing your employees. If you want to read about your rights and responsibilities when it comes to HIV in your workplace, read Chapter H10 in your Health and Safety Advisor.

Stay Safe,

Louise Harty
Senior Product Manager: Health and Safety

PS – One of your obligations as an employer is to create HIV awareness in your company. We have the perfect way for you to do this…in-house training. Contact us on seminars@fsp.co.za to arrange your very own HIV training.

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