The impact of this discrimination on HIV-positive people can be devastating, moreso when it occurs in the context of employment. It denies such employees or prospective employees the right to earn a living.
For this reason, HIV positive employees enjoy special protection from the law.
The duty to eliminate unfair discrimination arises out of international obligation. Zimbabwe has ratified a range of continental and global anti-discrimination conventions.
Section 23 of the Constitution of Zimbabwe also gives all citizens the right to be treated fairly and the right to equal treatment and non-discrimination.
Apart from these conventions and the Constitution, it is noteworthy that the Sadc Code of Conduct on HIV and Aids and Employment adopted by the Sadc Council of Ministers in September 1997 lays down guidelines on the handling of HIV and Aids in the workplace.
The Sadc Code was incorporated into our domestic law in the form of Statutory Instrument 202 of 1998 — the Labour Relations (HIV and AIDS) Regulations. It is this piece of legislation which is the specific focus of this article.
Statutory Instrument 202 of 1998 provides certain prohibitions, limitations and obligations on the handling of HIV and AIDS in the realm of work.
Foremostly, it is the duty of every employer to educate its employees on HIV and AIDS. This is meant to protect HIV- positive employees against prejudice and stereotyping and to combat erroneous, but nevertheless prevalent, perceptions about HIV.
Such education should be provided by reputable and knowledgeable people or organisations and must be conducted during normal working hours.
The subject matter of this education must cover how HIV is acquired and transmitted, the promotion of safe sex, sexually transmitted diseases, counselling facilities for HIV and Aids patients among other things.
Secondly, HIV and AIDS testing on recruitment is prohibited. While pre-employment medical examinations to ascertain fitness for work are perfectly legal, such testing cannot include HIV and AIDS testing. A landmark case in this context is that of Hoffman vs South African Airways (SAA)(2000).
In September 1996, Hoffman applied for a job as a flight attendant with SAA. He went through a rigorous selection process and together with a few other candidates, was found to be suitable for employment. However, as a last hurdle, they were asked to submit to a blood test for HIV and Aids.
Hoffmann was found to be HIV-positive. In South Africa, an employer has to seek an order from the Labour Court to conduct HIV and Aids tests. It was not stated in this case whether SAA had sought such an order.
Be that as it may, Hoffmann was then informed that he could not be employed because part of his job involved travelling to different countries which needed him to be vaccinated against yellow fever. Medically, someone with HIV may react negatively to this vaccine.
The case went to the High Court which ruled in favour of SAA, holding further that if SAA were forced to employ people with HIV, it “would be seriously disadvantaged as against its competitors” and therefore it was an inherent requirement for a flight attendant to be HIV-negative.
Hoffmann appealed to the Constitutional Court which ruled that SAA had committed an unfair labour practice by discriminating against Hoffman and infringing on his dignity. SAA was ordered to employ him and to pay the costs of the appeal.
The third provision of Statutory Instrument 202 of 1998 is that there shall be no compulsory HIV testing of existing employees and that an HIV-positive employee is under no obligation to pass this information on to his or her employer.
The employer or any other person may come across information relating to the HIV status of the employee during the course of duty, but shall not disclose such information to third parties without written consent of the employee, except where this is required by law.
It is an unfair labour practice to breach an employee’s right to confidentiality on HIV and Aids matters.
Fourthly, an employer cannot terminate the service of an employee on the basis of HIV status alone. The burden of proof will be on the employer to show that the termination was for some other reason other than HIV and Aids.
In making transfer, promotion or training and development decisions affecting employees, the employer cannot rely on HIV status alone. In the Hoffmann case stated above, SAA’s argument that the life expectancy of people who are HIV-positive was “too short to warrant the costs of training them” would be inherently wrong.
The fifth provision is that the HIV status of an employee shall not be used to determine eligibility for workplace benefits.
Where the law permits HIV testing of employees for the purposes of an occupational scheme, the conditions relating to HIV and Aids shall be the same as those applicable in respect of other comparable chronic illnesses.
Where HIV testing is necessary for a benefit scheme, the employer shall ensure that the employee undergoes appropriate pre- and post-test counselling. If an employee chooses not to undergo an HIV test, it will be unlawful to draw inferences about such employee’s HIV status.
The sixth provision says that any employee suffering from HIV or Aids shall enjoy the same conditions relating to sick leave as those enjoyed by any other employee in terms of the law.
The Labour Act provides that a sick employee can have 90 days’ paid sick leave on full pay and a further 90 days on half pay in any one year of service before termination can be considered.
However, most employers have generally have been reluctant to terminate the services of HIV-positive employees, preferring instead to offer them alternative employment or facilitating anti-retroviral therapy.
Lastly, an accident at work can cause a bleeding injury. If the injured person is HIV-positive, that may pose a risk of infection to those who try to help him or her as they come into contact with the injured person’s blood. It is the employer’s responsibility to ensure that all employees are not at risk of HIV infection at work.
This means, for example, that employers must keep rubber gloves in the first aid boxes and supply free of charge other personal protective devices.
Appropriate training should also be provided to staff on how to minimise the hazards of the spread of HIV and Aids should an accident happen.
Statutory Instrument 64 of 2008 — the Labour Relations (General) (Amendment) Regulations amended Form LR 33 (the Labour Inspectorate Inspection Form) to empower labour officers to inspect workplaces for the existence of HIV and Aids sector or workplace policies, HIV and Aids committees, education and awareness of employees, peer educators and counsellors and other matters provided for in the HIV and Aids regulations.
The labour officer will ask the employer to rectify any areas of non-compliance. Employers should note that it is a legal requirement for every employee to be provided with a copy of Statutory Instrument 202 of 1998, as amended.
What are the remedies where discrimination has been proven? Section 5 of the Labour Act entitles the wronged employee to claim damages from the employer for loss suffered directly or indirectly as a result of the discrimination.
The adjudicating authority may also issue an order directing the employer to redress the contravention. Statutory Instrument 202 stipulates a fine, imprisonment for six months or both such fine and imprisonment for an employer who violates any of provision of the HIV and Aids regulations.
Isaac Mazanhi is a labour analyst writing in a personal capacity.