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Draft : COSATU Model Policy on HIV/Aids

in the Workplace - October 2002

HIV/AIDS already affects all our workplaces, and is likely to grow worse. Our concerns are:

1. Dealing with denial and discrimination against people with HIV and AIDS, from employers, other workers and communities
2. Ensuring that we are all empowered to prevent HIV, including in the workplace, and have access to free condoms
3. Getting medical treatment, adequate nutrition and wellness support, additional time off for opportunistic illnesses, and appropriate working conditions for workers with HIV
4. Making sure that workers who can no longer work because of AIDS get disability pay when they need it, and that if they die, their dependents – including their children – get adequate support from their retirement funds
5. Empowering women comrades, who often have to care for family members with HIV as well as facing sexual harassment and other kinds of discrimination, which make it harder for them to prevent and live with HIV.

To deal with these issues, we need to negotiate workplace policies and programmes on HIV and AIDS. Our demands must reflect what we know about HIV:

  • Between 10% and 20% of workers are already infected with HIV. In some occupations and workplaces, the figure is even higher.
  • You can only get HIV from bodily fluids. Workers cannot get HIV from normal contact in the workplace, including from touching each other, working together or sharing cups and toilets. But some workers can get HIV from their work, if they have to deal with blood or other body fluids – for instance, health workers, corrections officers, police and teachers. These workers must use universal precautions and be educated on how to avoid catching HIV.
  • Most workers with HIV will not get ill for seven to ten years. If they get enough to eat, have healthy working and living conditions, and get appropriate treatment they will live longer. This is especially true if they can get anti-retroviral treatment.
  • Workers with HIV can get very ill indeed, for instance with T.B., and then recover completely if they get the right treatment.
  • It is illegal for employers to discriminate unfairly against people with HIV, and it is illegal for healthworkers to tell other people about anyone’s HIV status without that person’s permission.

You can get more information on HIV/AIDS from the Workers Handbook on HIV/AIDS.

1.Legal framework
A number of laws aim to prevent discrimination against people with HIV, and to ensure that they get adequate benefits. Appendix I summarises the legal requirements.

2 .Model policy
We here present a model workplace policy on HIV and AIDS. It should be modified to meet the needs of your workplace and co-ordinated with existing collective agreements.

1. Aims
The policy aims:

a. To declare that HIV and AIDS are workplace issues and to improve interactions and education around them in the workplace.
b. To build consensus on how to deal with HIV and AIDS in the workplace.
c. To strengthen education on and prevention of HIV, as well as measures to support the health of people with HIV
d. To support voluntary testing and counselling and in that context to establish mechanisms to monitor the incidence of HIV while ensuring full confidentiality for individuals
e. To build solidarity amongst workers in dealing with HIV, preventing unfair discrimination, and creating a supportive environment
f. To ensure that conditions of employment meet the needs of people with HIV without imposing undue burdens on the workforce
g. To take into account the special needs of women arising out of the HIV/AIDS pandemic
h. To establish appropriate grievance procedures for issues related to HIV.

2. Education
2.1. Education will be provided to all workers so as to:

a. Create awareness on HIV/AIDS
b. Promote safer sex
c. Strengthen respect for women’s rights
d. Promote solidarity with people with HIV and AIDS
e. Encourage people to get tested for HIV and to get counselling
f. Ensure people know about basic options for treatment for HIV and AIDS, including for opportunistic diseases and STDs
g. Promote understanding of workers’ rights, including around health care, testing and conditions of employment.

2.2. Education will be provided

a. to shop stewards in order to equip them with counselling skills,
b. to members of the health and safety committee to ensure they can
i. assess working conditions for people with HIV and
ii. where appropriate, require the use of universal precautions.

2.3. The parties agree to include education on HIV in the workplace training plan, and that the employer will fund it. The parties will jointly design the programme and designate the trainers.

2.4. The employer will provide time off as required for training, with a minimum of:

a. eight hours a year in paid time off for workers to participate in education on HIV, and at least
b. 30 hours for shop stewards to get training in counselling.
[Specific demands on time off should be aligned with existing agreements.]

2.5. The parties will provide accurate and easily understandable educational material on HIV in the workplace for all employees.

3. Prevention

3.1. All employees and supervisors are responsible for preventing HIV both in the workplace and in their personal activities.
3.2. The employer shall provide free condoms for all employees.
3.3. The workplace must be equipped to prevent infection in case an accident leads to blood spills.
3.4. If employees come into contact with bodily fluids in the course of their work,

a. The employer shall ensure that the employees are educated about universal precautions and provide the necessary resources
b. The employer shall ensure that if an employee is exposed to HIV infection in the course of his or her work, the employee can get anti-retroviral treatment as post-exposure prophylaxis.

4. Counselling, testing and confidentiality

4.1. The parties will encourage all employees to get tested for HIV, and the employer will pay for counselling and testing for all employees.
4.2. No actual or prospective employee may be required to take an HIV test, and no employee may be tested without his or her knowledge and consent.

4.3. The parties will ensure that

a. All employees who get tested receive counselling by a trained counsellor, preferably a shopsteward, before and after the test
b. The results of an individual’s test remain fully confidential. Files related to HIV must be kept confidential and must not be marked or flagged in ways that indicate HIV status. Healthworkers must not communicate an employee’s HIV status to anyone without the employee’s written permission.

4.4. If the employer, a union official or shopsteward learns the HIV status of an employee, they will not communicate it unless the employee consents.
4.5. The parties will

a. Encourage workers openly living with HIV to conduct and participate in education, prevention and awareness programmes
b. Promote the development of support groups for workers living with HIV, including by giving space and paid time off for them to meet
c. Ensure that workers who are open about their HIV status are not unfairly discriminated against or stigmatised.

5. Non-discrimination

5.1. The parties will work together to end unfair discrimination and stigmatisation against people with HIV.
5.2. The parties will ensure that an employee with HIV does not experience unfair discrimination in access to employment, training, promotion and/or benefits.
5.3. A manager, supervisor or other employee who discriminates, harasses or otherwise mistreats an employee with HIV shall face normal disciplinary procedures.
5.4. The parties will work together to create a supportive environment to ensure that employees with HIV are able to continue working for as long as they are able to do so.

6. Employment security

6.1. No employee may be dismissed or retrenched because of their HIV status.
6.2. If an employee with HIV cannot perform his or her normal duties because of opportunistic diseases, the employer must attempt to find reasonable alternative accommodation for him or her.
6.3. If HIV permanently disables an employee, the employer shall apply standard procedures for termination of employment due to disability, without unfair discrimination. [These demands should be modified depending on existing agreements on disability]

7. Grievance procedure

7.1. The grievance procedure shall be the same for an employee with HIV as for all other employees, without discrimination
7.2. If an employee’s HIV status is at issue in a grievance procedure, the parties to the grievance procedure shall not communicate it to anyone who does not need to know it as part of the grievance procedure.
7.3. If a party to a grievance procedure communicates an employee’s HIV status unnecessarily, she or he shall be subject to disciplinary action.

8. Health care

8.1. The employer will support adequate healthcare for all employees with HIV and their families, including:
a. General assistance to help people with HIV stay healthy, by providing nutritional support and immune boosters
b. Assistance with primary health care and referrals for treatment for opportunistic diseases
c. Provision of anti-retroviral treatment for people with HIV.
8.2. The employer will ensure that an employee with HIV is protected from unhealthy conditions at work.

9. Sick, disability and family leave

9.1. To recover from opportunistic diseases, an employee with HIV will receive each year, in addition to the normal leave allowance,
a. ten days extra sick days, and
b. six weeks extra disability leave.
9.2. An employee who must care for a person with HIV shall receive an extra ten days’ family leave a year.

10. Benefits

10.1. Benefit schemes shall be reformed to provide adequately for people with HIV in terms of:
a. Healthcare, including anti-retroviral treatment
b. disability and retirement support
c. benefits for widows and orphans
10.2. A joint employer-union task team will where reforms are needed to meet the requirements given in paragraph 10.1
10.3. A benefit scheme shall not disclose an employee’s HIV status without the employee’s written permission.

11. Monitoring and evaluation
The parties will evaluate progress in implementing this policy at least every three months.

12. Definitions

    1. AIDS Acquired Immune Deficiency Disease – when a person with HIV gets severely ill because the HIV has weakened their immune system
    2. Anti-retroviral treatment - Medication that can prolong the life of a person with HIV for many years, possibly decades
    3. Employee with HIV - Employee infected with HIV
    4. HIV - Human Immuno Deficiency Virus, which causes AIDS
    5. HIV status - Whether a person is infected with HIV or not
    6. Opportunistic disease - Diseases that people with HIV get when the HIV has weakened their immune system
    7. Post-exposure prophylaxis - Short-term anti-retroviral treatment within two days of exposure to HIV (for instance from rape or an accident at work) in order to prevent infection
    8. Safe sex - Sexual activities that prevent contact with bodily fluid, for instance by using a condom
    9. Universal precautions - Measures such as rubber gloves to prevent infection of any kind from contact with body fluids.

Appendix 1. Legal framework
The Constitution of South Africa Act, No. 108 of 1996, prevents unfair discrimination. Other relevant legislation includes the following:

1. Code of Good Practice on Key Aspects of HIV/AIDS and Employment

This Code is issued in terms of Section 54(1)(a) of the Employment Equity Act, No 55 of 1998. It is based on the principle that no person may be unfairly discriminated against on the basis of his or her HIV status. In order to assist employers and employees to apply this principle consistently in the workplace, the Code refers to the Constitution, the Labour Relations Act and other pieces of legislation.

2. Employment Equity Act, No. 55 of 1998

Section 6(1) of the Employment Equity Act provides that no person may unfairly discriminate against an employee, or an applicant for employment, in any employment policy or practice, on the basis of his or her HIV status. In any legal proceedings in which it is alleged that any employer has discriminated unfairly, the employer must prove that any discrimination or differentiation was fair.
The Act also prohibits HIV testing without Labour Court authorisation.

3. Labour Relations Act, No. 66 of 1995;

Section 187(1)(f) of the Labour Relations Act, No. 66 of 1995, provides that an employee with HIV/AIDS may not be dismissed simply because he or she is HIV positive or has AIDS. However where there are valid reasons related to their capacity to continue working and fair procedures have been followed, their services may be terminated in accordance with Section 188(1)(a)(i).

4. Occupational Health and Safety Act, No. 85 of 1993

Section 8(1) of the Occupational Health and Safety Act, No. 85 of 1993 requires an employer to provide, as far as is reasonably practicable, a safe workplace. This may include ensuring that the risk of occupational exposure to HIV is minimised.

5. Compensation for Occupational Injuries and Diseases Act, No. 130 of 1993

An employee who is infected with HIV as a result of an occupational exposure to infected blood or bodily fluids may apply for benefits in terms of Section 22(1) of the Compensation for Occupational Injuries and Diseases Act, No. 130 of 1993.

6. Basic Conditions of Employment Act, No. 75 of 1997;
In accordance with the Basic Conditions of Employment Act, No. 75 of 1997, every employer is obliged to ensure that all employees receive certain basic standards of employment, including a minimum number of days sick and family leave.

7. Medical Schemes Act, No. 131 of 1998.

In accordance with Section 24(2)(e) of the Medical Schemes Act, No 131 of 1998, a registered medical aid scheme may not unfairly discriminate directly or indirectly against its members on the basis of their “state of health.” In terms of s 67(1)(9) regulations may be drafted stipulating that all schemes must offer a minimum level of benefits to their members. Currently, regulations require that schemes provide treatment for HIV.

8. Promotion of Equality and Prevention of Unfair Discrimination Act, No. 4 of 2000.

In accordance with both the common law and Section 14 of the Constitution of South Africa Act, No. 108 of 1996, all persons with HIV or AIDS have a right to privacy, including privacy concerning their HIV or AIDS status. Accordingly there is no general legal duty on an employee to disclose his or her HIV status to their employer or to other employees.