The use of HIV testing in the workplace as the basis for possible unfair discrimination

Abstract

Human immunodeficiency virus and acquired immune deficiency syndrome (hereafter HIV/AIDS) in South Africa are epidemic virus and disease respectively, item 1.1 of the EEA Code of Good Practice on Key Aspects of HIV/AIDS and Employment, 2000 states that HIV/AIDS are serious public health problems, which have socio-economic, employment and human rights implications on the society, employees inclusive. The Constitution of the Republic of South Africa, 1996, Employment Equity Act 55 of 1998, Labour Relations Act 66 of 1995 and Promotion of Equality and Prevention of Unfair discrimination 4 of 2000, international and regional instruments and standards provide protection to HIV positive employees in the workplace. Notwithstanding this plethora of legislation, employees are still faced with the problems of being stigmatised, unfairly discriminated against and ultimately dismissed from work for being HIV positive. Employees are subjected to HIV testing and the information about their HIV statuses is still being disclosed without their informed consent and their right to privacy and confidentiality may be violated. These possible violations of employees' rights may affect the economy of the country. When employees are dismissed, the amount of production and profits for the employers decrease and as a result the government loses tax revenue, the unemployment and poverty rates increase. Hence it is imperative to investigate the problems of stigmatisation, unfair discrimination and dismissals in order to see to what extent are employees' rights protected. There will be a comparative study in Canada which is experiencing the same problems as South Africa in order to find out how Canada can provide solution to South African problems.