If your employer, or someone who is considering employing you, attempts to make you have an HIV test, you have the right to decline

If your employer, or someone who is considering employing you, attempts to make you have an HIV test, you have the right to decline

“People simply disappear quietly from the workplace and die in silence,” says labour lawyer Marleen Potgieter. “There is still extraordinary ignorance around the disease, which up to 6.5 million South Africans currently live with.”

Since more than 90 percent of people with HIV are in the most productive period of their life, according to international statistics, HIV has a direct effect on business.

Potgieter is the co-author of Unfair Discrimination In The Workplace (Juta) and the content creator for a series of e-learning courses on employment equity for The Training Room Online.

She says that despite ever-increasing knowledge regarding HIV, people with the disease are still struggling to communicate with their employers for fear of being discriminated against.

And not without reason.

HIV/AIDS is mired in folklore, suspicion and mistrust and the fact that it is a disease that comes from having sex (mostly).  It is something that is not spoken about openly,” Potgieter says.

Yet HIV is clearly and directly addressed in the Employment Equity Act. The backbone of the regulations supporting it concerns itself mostly with training on the one hand, and non-discrimination on the other. No one is required to share their HIV status with their employer and can’t be forced to do so, but a dire lack of training in this area continues to perpetuate irrational fear and illegal discrimination against people with HIV.

Know your rights

Potgieter refers to one employee who disclosed their status to human resources in their company as an explanation for repeated sick leave, but was later discriminated against by a senior employer who acquired the information by bullying officials in the department. He told them he didn’t want “that type of person” working for the company.

“I myself had someone who was HIV positive in my employ. I took him, dying, to my doctor who did not want to treat him. So I took him to a public hospital where he was treated him with the respect he deserved, and I reported the GP to the medical council,” Potgieter said.

“Some of my friends would not send their children to play at my house, as I had someone who was HIV positive working for me. There is so much discrimination everywhere by people who should know better, including in the workplace, where the stakes are particularly high for everyone.”

She says people living with HIV are “strongly protected by law”, including:

  • As an employee, you are not legally obliged to disclose your status to your employer or anyone else.
  • If you do choose to disclose your status to anyone – your direct manager, your HR manager or any of your colleagues – they are forbidden to share it without your consent.
  • If your current employer, or someone who is considering employing you, attempts to make you have an HIV test, you have the right to say no.
  • If your status is known, you are not allowed to be victimised by your employer or your co-workers under any circumstances.
  • Your employer is not allowed to demote or dismiss you based on your HIV status.
  • The only time an employer may dismiss someone is when they become too ill to do their job. Even then, that person may only be dismissed after the employer has followed “rigorous procedures” and tried to find alternative employment for the employee in question.
  • You are entitled to the same benefits as any employee without HIV.

Knowing that the law is on your side, can increase your sense of power in a situation where you might feel powerless, says Potgieter.

“Awareness is a good start, but it’s only the beginning. Whether and how to disclose your HIV status is a very personal and very difficult decision, but it might help to know that it is not a crime to be HIV positive and that the law stands solidly on the side of those people who have the virus and are treated unfairly by their employers or colleagues.”

This article was written by Karin Schimke. Schimke works for the Irvine Bartlett public relations firm.