“Celebrating International Worker’s Day: Can my employer force me to have an HIV test?”
Today, we are celebrating International Worker’s day. We commemorate and bring into light worker’s rights. In the spirit of doing so, I thought I should cover this topic because it is very much relevant for what today represents.
“Can my employer force me to have an HIV test?”
Several months ago, a friend of mine reached out to ask for advice. She had just given birth to a beautiful baby boy. After being on maternity leave for several months, she was scheduled to return to work. She now had the responsibility of finding a nanny for the baby. One of her family members suggested someone they knew. During an interview, the potential nanny disclosed that she was HIV positive. Not that she owed anyone any additional information, but she didn’t disclose anything else after that. So, my friend didn’t know whether she was on treatment. Whether she was adhering to her treatment etc. As a young mother, she reached out to me because she wanted advice on how to handle the situation.
People living with HIV in South Africa, and in any country for that matter, are protected by the Bill of Rights. As a person living with HIV, I have the same rights which protects all citizens. Additionally, I am protected as follows:
· There can be no discrimination against anyone who has HIV or AIDS
· People living with HIV or AIDS have the right to medical treatment and care from the health and welfare services
· Children living with HIV are allowed to attend any school
· Test results can cannot be shown to anyone else within the permission of the person who had the test
· Pregnant women with HIV have the right to make a choice about their pregnancy
· No one can be fired from a job because they are HIV positive
· No one can be forced to have an HIV test before getting a job or while at work
I shared this information on social media. Another friend made an interesting comment. She mentioned that, particularly in testing for HIV, that is not always the case. She made mention of how this practice is sometimes excused in some industries, particularly with the South African National Defense Force (SANDF) and Civil Aviation Authority. I was surprised by this. I didn’t understand how a constitutional right may be excused. How could one right apply to one person and not the other. I will be honest that I didn’t have much information on this. But I did promise her that I will do my research and cover this topic on my YouTube channel.
While our Constitution protects people living with the HIV, there are exceptions made by the South African Labour guide. In that document, it is explained that, “No employer may require an employee, or an applicant for employment, to undertake an HIV test in order to ascertain that employee's HIV status”. However, if there are special circumstances that the employer requires an HIV test to be completed, they are required by law to approach the Labour Court to obtain authorisation for testing. There are strict guidelines of how this should be done. For more information on this, please follow this link: https://www.labourguide.co.za/general/387-code-of-good-practice-on-aspects-of-hivaids-employment
South Africa’s Bill of Rights remain the same. “No one can be fired from a job because they are HIV positive. And no one can be forced to have an HIV test before getting a job or while at work”. However, there have been circumstances where the above have not followed. This has been the case with the South African National Defense Force.
Policies on HIV/AIDS, within the Department of Defense, date back to the 1980’s. The department called it a “strategic issue” to purposefully exclude people living with HIV from their workforce. When one applies to the SANDF, they are required to complete a medical assessment report. This report includes an “voluntary” HIV test. The issue of this test being voluntary is interesting because if an applicant declines to take the test, their submission is immediately categorized as incomplete and, therefore, cannot be considered. If they agreed, and their test comes back positive, they were not considered. If someone tested positive for HIV after placement, their contracts would not get renewed. Although the Labour Relations Act and Employment Equity Act prohibited an employer from using an HIV status as condition of employment, the practice of testing military candidates has been common practice. It is even the case today.
It would only be in 2008, when three military people took the SANDF to court. They challenged the court to look at the current SANDF policies that had been purposely excluding people living with HIV from the military for years. You can read up on the case in this below: http://www.saflii.org/za/cases/ZAGPPHC/2014/727.pdf
I found it particularly interesting how the SANDF argued for their policies. Some of their reasons for excluding people living with HIV from the force are as follows:
· People living with HIV are unhealthy and chronically ill.
· The SANDF was already oversubscribed. Therefore, they had the option of picking the most suitable candidates.
· The SANDF budget was already stretched and could not accommodate providing treatment for people living with HIV.
· Soldiers are required to do constant rigorous exercise, which was not recommended for people living with HIV.
· Medical evidence suggest that HIV-compromised persons suffer from short-term memory loss and have difficulty integrating information, all of which affect their decision-making abilities wen executing their duties.
Upon hearing all arguments, the court did find the SANDF policies unconstitutional. The SANDF was forced to amend its health policies with immediate effect. This included recruitment, external deployment and promotion of militants living with HIV.
Under the new policy, militants are classified according to their health status and needs. An HIV positive militant that is “stable” can be deployed “anywhere at any time”. It is unclear what criteria is used to determine stability. However, for international deployment, the militant must have a CD4 cell count higher than 350 and an undetectable viral load. Before the militant is deployed, it is required that they’re on ARVs for at least 6 months before being considered. Failure to adhere to this may be grounds for SANDF to declare this person unfit.
Five years later, despite the 2008 ruling and “adoption” of the new policy, the SANDF was challenged in court once again (https://www.news24.com/SouthAfrica/News/SANDFs-HIV-policy-attacked-20140729). Two women’s contracts were not renewed after they tested positive, after a “routine medical assessment”. Unfortunately, I couldn’t read on what happened to this case. All the reports said judgement was reserved. There was another case in 2016 (https://www.iol.co.za/news/south-africa/free-state/i-learned-i-was-hiv-when-i-tried-to-join-the-army-2095071). Although it did not make it in court, it highlighted the resistance of the SANDF in adhering to the original 2008 judgement.
South Africa is not the only country that has been in the spotlight regarding this matter. In 2000, the Namibian Defense force was taken to court to review testing potential recruits to determine whether they’re physically fit for the military (https://namiblii.org/na/judgment/labour-court/2000/1). It was a similar case in Australia (https://www.ilo.org/global/topics/hiv-aids/legislation/WCMS_241371/lang--en/index.htm). A militant was dismissed from his job after his tested positive for HIV. He went to court and challenged his dismissal. And it was the same with another militant in Canada (https://goldblattpartners.com/experience/notable-cases/post/canada-attorney-general-v-thwaites/).
As I said, the SANDF has not been the only industry in the spotlight for testing their recruits. Civil Aviation Authority is another example. In 2000, there was the South African Airways vs Hoffman case. The court heard that Hoffman passed all other tests relating to his application with flying colours and was turned down solely on the basis of his HIV status (https://www.news24.com/SouthAfrica/SAA-admits-HIV-discrimination-20000818). Two years ago, another flight attendant claimed to have been grounded after his publicly disclosed his HIV status. The CAA obligates flight personnel to disclose their HIV positive status or face legal action. Many HIV-positive crew members simply don’t disclose (https://www.spotlightnsp.co.za/2018/06/13/flight-attendant-grounded-because-of-hiv-status/).
It has been very important for me to bring more aware on such a topic, to hopefully continue shedding light on how unfair and discriminatory these practices are – that they deliberately exclude people living with HIV from working, because they’re perceived as a high risk.
If you ever find yourself in such a situation, please do not shy away from the seeking legal assistance. An HIV test should always be carried with your full consent.
We have come a long way, but when one of us is not free…we are all not free.
Nozibele Qamngana Mayaba