11.5. Legal Support

According to the Constitution of South Africa Act No 108 of 1996 all persons have a right to equality, freedom and security, privacy, fair labour practices and access to information. This includes people living with HIV and AIDS.
South Africa has put in place a legal framework to protect employees and job applicants infected with HIV against discriminatory and unfair labour practices. The laws and policies apply to both the private and public sector. Specific public service regulations prescribing minimum standards for public sector HIV and AIDS workplace programmes are also available.
The NATIONAL HEALTH ACT OF 2003 provides for the rights of all South Africans to good health.
Other relevant pieces of legislation include:
* THE EMPLOYMENT EQUITY ACT NO 55 OF 1998 prohibits unfair discrimination against an employee, or applicant for employment, in any employment policy or practices, on the basis of his/her HIV status. In any legal proceedings where the employer has discriminated unfairly, the employer must prove that any discrimination or differentiation was fair. There have been a few legal challenges linked to this Act, which resulted in reinstatement in more than 90% of cases. The law forbids all forms of testing in the workplace. The law goes as far as banning pre-employment testing for HIV when applying for work unless the labour court has given the employer permission to do so.
* THE LABOUR RELATIONS ACT NO 66 OF 1995 prohibits dismissal of an employee on the basis of HIV and AIDS status. However, the Act allows for termination of services only when a person is no longer able to work and stipulates that fair dismissal procedures are followed. The Act does not cover members of the South African Defence Force and the National Intelligence Agency.
* THE OCCUPATIONAL HEALTH AND SAFETY ACT NO 85 0F 1993 regulates the creation of safe working environment. This may include ensuring that measures are put in place to ensure that risk of occupational exposure (accidents in the workplace) to HIV is minimised. Guidelines have been developed on post exposure prophylaxis (PEP) to reduce HIV infection and to offer advice on how cases of HIV through workplace exposure are to be handled.
* THE MINE AND SAFETY ACT NO 29 OF 1996 provides for safe working environment in the mines.
* The COMPENSATION FOR OCCUPATION INJURIES AND DISEASE ACT NO 130 OF 1993 makes provision for compensation of employees accidentally injured/infected with a disease while at work.
* The BASIC CONDITIONS OF EMPLOYMENT ACT NO 75 OF 1997 makes provision for basic conditions of employment including a minimum of sick leave days.
* The MEDICAL SCHEME ACT, NO 131 OF 1998 stipulates that a registered medical aid scheme may not unfairly discriminate directly or indirectly against its members on the basis of their state of health. The Act prescribes that schemes cannot exclude from membership based on a medical condition and this includes HIV. The Act also states that all schemes must offer a minimum level of benefits to its members.
The prescribed minimum benefits are to be reviewed at least every two years and the review must focus specifically on the development of treatment programmes of HIV and AIDS. The current prescribed minimum benefits for HIV infection are:
- HIV voluntary counselling and testing
- co-trimoxazole as a preventive therapy
- Antiretroviral therapy
- screening and preventive therapy for TB
- diagnosis and treatment of sexually transmitted infections
- pain management in patients who are hospitalised
- treatment of opportunistic infections e.g. TB , Pneumonia, certain kinds of cancer
- prevention of mother-to-child transmission of HIV
- post-exposure prophylaxis(PEP) following accidents in the workplace or as a result of rape or sexual assault
* THE PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION ACT NO 4 OF 2000 prohibits unfair discrimination in all sectors. This act ensures that employees with HIV and AIDS are not unfairly discriminated in the workplace. The code provides for:
- Creating a non-discriminatory environment
- Dealing with HIV testing, confidentiality and disclosure
- Providing equitable employee benefits
- Dealing with dismissals
- Managing grievances procedures
The Code also provides guidelines for employers, employees and trade unions on how to manage HIV and AIDS within the workplace. These guidelines cover:
- Creating a safe working environment
- Procedures for management of occupational (workplace) incidents and claiming for compensation
- Measures to prevent the spread of HIV
- Supporting those infected or affected by HIV and AIDS
The Code also promotes cooperation firstly between employers, employees and trade unions in the workplace and secondly, between the workplace and other stakeholders at a local, provincial and national level.
* The PUBLIC SERVICE REGULATIONS WAS FIRST PUBLISHED IN JANUARY 2001 and subsequently amended in June 2002 to include minimum standards for departmental HIV and AIDS programmes. These regulations are compulsory for all national and provincial departments.
The PUBLIC SERVICE REGULATION 2002 stipulates that the working conditions should support effective and efficient service delivery and should as reasonably possible take into account the employees' personal circumstances including HIV and AIDS. In particular the regulation states that there should be specific measures, procedures and services with regard to occupational (workplace) exposure, non-discrimination, HIV testing, confidentiality and disclosure, health promotion programme and monitoring and evaluation. These regulations are supported by laws that apply to the workplace.
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