Submission on HIV/AIDS workplace discrimination
South Africa has a strong legislative framework aimed at preventing HIV-related discrimination in the workplace.
Guidelines developed by the International Labour Organisation (ILO) and the Code of Good Practice on HIV/AIDS which is linked to the Employment Equity Act (EEA) provide useful information on the content of HIV workplace policies.
Many large employers have adopted workplace policies to mitigate the impact of the HIV epidemic on their business. Some of them have been at the forefront in providing HIV prevention, care and treatment services since 2002 at no cost to low income earning employees.
However, despite these positive developments, the AIDS Law Project continues to receive many complaints regarding unfair dismissals, unfair discrimination, and the mismanagement of HIV-related cases in the workplace, in small, medium and large enterprises.
- In our experience, it appears that the implementation of HIV workplace policies is often patchy, with large companies adopting a policy at a national office level, and failing to ensure that information on the content of the policy (or even its existence) is disseminated at branch or department level.
- While some companies offer free workplace prevention, care and treatment programmes, the historical fear of breaches of confidentiality and dismissal amongst employees has been a significant barrier to the up-take of these services within the workplace.
- There is also a tendency among some companies and government departments to limit education and awareness activities to an annual World AIDS Day event and/or the distribution of pamphlets. This means that a significant opportunity for real education on HIV prevention, testing, treatment, and the reduction of stigma is being missed.
- A survey of workplace policies conducted by the South African Business Council on HIV/AIDS (SABCOHA) in 2004 shows that while many large employers in the private sector have active HIV workplace policies, very few small and medium enterprises have adopted or implemented workplace policies at all. This is problematic as the majority of the unfair dismissal and discrimination cases which the AIDS Law Project has dealt with in the past two years involve small companies and individual employers (generally employers of domestic workers).
- Many small employers do not appear to recognize the need for managing HIV in the workplace. Discrimination against employees living with HIV is often motivated by ignorance of HIV transmission and the perception that the employee is a threat.
- In situations where employees are poorly paid, non-unionised, have low job security and minimal formal education, employers do flout the law leaving the employee without recourse and/or even access to the justice system.
- For many employees in small workplaces, where about half earn less than R 2 500 per month, HIV-related stigma and discrimination is a reality. This prevents many employees from disclosing their status and/or accessing legal protections and prevention, care and treatment services that may be available.
- The proper implementation of HIV workplace policies can do a lot to decrease stigma, create an environment which encourages disclosure, encourage testing, and assist employees to access proper medical treatment.
- However, many companies and organisations have not voluntarily adopted and implemented HIV policies for a number of reasons relating to perceived costs, lack of expertise or disinterest.