CODES OF GOOD CONDUCT.4

HIV AIDS.

In terms of the New Amendments to Labour Law, ALL EMPLOYERS must now be compliant and in doing so MUST be in possession Contracts for all staff; Company Rules and all required Codes of Conduct including those for Discipline, Grievance, Sexual Harassment and Hours of Work. YOU as professional employers should also have a specific Code for HIV /AIDS; Recruitment and Screening; Benefits and Training.You need to start off with what is called a DOCUMENT AUDIT (we have draft forms available) and from there have drafted ALL necessary documents.From there, you are required to ensure that all staff are fully aware of the content of these books and documents and hence, you will need to conduct Tutorials on each one.Aside from being in a position to Draft the required documents for you, we also specialise in these Tutorials and have a unique way of handfling these which ensures your complete COMPLIANCE.

We at labour Justice supply a monthly Info Sheet to all our clients and those in business and management who need to be constantly updated. This is a free service.

WOULD YOU LIKE TO BE PART OF THIS SERVICE AND RECEIVE OUR MONTHLY INFO SHEET ?
If so, please send an email with your name, company name and telephone number and your position in that company to employerhotline@labourjustice.com  OR lesley@labourjustice.com

What follows is a brief overview of a Code for HIV / AIDS. If you want the complete sheet the cost is R100:00 and if you want us to draft one specifically for your company, the cost will be R850:00. Please email us at info@labourjustice.com

CODE OF GOOD PRACTICE -HIV / AIDS. 

1 Introduction.
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Hello to all our Registered clients and any others who may be reading this info sheet. The topic this time is HIV/AIDS and it is a vast one to cover. Please know that we will be covering this code and all others in our ADVANCED COMPLIANCE management Training Session on the NEW AMENDMENTS where we will take an in-depth look at all codes, including HIV/AIDS and how to draft them in order to be compliant. Details and booking forms available on our web site at www.labourjustice.com

There are TWO different diseases which we need to deal with. These are:-
The Human Immunodeficiency Virus (HIV) and the Acquired Immune Deficiency Syndrome (AIDS).The Human Immunodeficiency Virus (HIV) and the Acquired Immune Deficiency Syndrome (AIDS) are serious public health problems which will clearly affect every single facet of life in South Africa (and probably the whole World) and their invention (yes, dare I use that word) will have far reaching ramifications in the socio economic areas and naturally in employment.
In recent times we have seen much argument between the Government and the Action campaign over Neviropine, and daily, we are bombarded in the news and magazines with facts relating to HIV and AIDS;Despite all the publicity and even in my own mind, there is much about HIV and AIDS that I do not know and this ignorance is prevalent everywhere. Ignorance is one of those "things" that automatically brings with it an inability to even know how to come to terms with something let alone the various different situations that will unfold as a result. Ignorance breeds prejudice and discrimination. It is clear that there is a negative stigma attached to all sufferers of both HIV and AIDS and it became necessary for the Department of Labour to become involved as a result of the Unfair discrimination that was perpetrated against sufferers in the work place. There can be doubt, no matter how much we play "Ostrich head in the sand" that HIV and AIDS has become an EPIDIMEMIC that will affect us all, no less in the Labour area. It is believed that in the not too distant future there will be continual staff illness, absenteeism and even death among colleagues, peers and management. This will affect staff morale, productivity and profits. So it is clear that Employers must do something about it now…."USE A CONDOM" if you will. HIV/AIDS are diseases which give rise to unfair discrimination in the workplace against people living with HIV and AIDS and this discrimination has been perpetuated through practices such as pre-employment HIV testing, dismissals for being HIV positive and the denial of employee benefits. It is perceived by the Minister and by his Department of Labour that one of the most effective ways of reducing and managing the impact of HIV/AIDS in the workplace is through the implementation of an HIV/AIDS policy. Hence, the code has been issued by the Minister in the hope that this will enable and EMPOWER employers, trade unions and the government itself to actively contribute towards local, national and international efforts to prevent and control HIV/AIDS

If in any doubt please call 0721768309 and ask for LESLEY or by email to employerhotline@labourjustice.com 

2. LEGAL REQUIREMENT OR NOT?
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Let me begin by asking you to watch the use of the wording…… "not directly" and "no direct legal obligation" in the next paragraph. It is an anomalous term because in point of fact, there are even now LAWS THAT GOVERN PROBLEMS ASSOCIATED WITH HIV and AIDS. Although at this time, there is no Direct legal obligation or requirement on the part of an Employer to have a specific Code for HIV /AIDS, it becomes "advisable" to have one drafted and implemented at your company at this stage. I would opine that at the next ROUND of Amendments to Labour Laws (and yes, there will be one again quite soon), it WILL indeed become a requirement to add to all other internal Codes one dedicated to HIV / AIDS. So, any failure on the part of an Employer to observe the Code of Conduct for HIV / AIDS does not at this time and in itself DIRECTLY render YOU liable for problems, proceedings or disputes. HOWEVER……… you are directed to both the New Amendments to the Labour Relations Act, the Employment Equity Act and a number of other Labour Laws which cover disputes in terms of discrimination and HIV / AIDS in general:-
2.1 EMPLOYMENT EQUITY ACT,
i) Section 54(1)(a) of Act No 55 of 1998 is based on the principle that no person may be unfairly discriminated against on the basis of their HIV status;
ii) Section 6(1) of the 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. This would therefore have a direct Bearing on the Personnel Industry and on all Screening and Placement;
iii) No employee, or applicant for employment, may be required by their employer/interviewer to undergo an HIV test in order to ascertain their HIV status. HIV testing by or on behalf of an employer may only take place where the Labour Court has declared such testing to be justifiable in accordance with Section 7(2) of the Employment Equity Act.
iv) section 7(2) prevents an employer-provided health service supplying a test to an employee who requests a test, depends on whether the Labour Courts would accept that an employee can knowingly agree to waive the protection in the section.

2.2 LABOUR RELATIONS ACT (LRA)
In accordance with Section 187(1)(f) of the Labour Relations Act, No. 66 of 1995, an employee with HIV/AIDS may not be dismissed because it 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). You need to get to know how to do this. Please attend our Advanced Management Training Session.

2.3 OCCUPATIONAL HEALTH AND SAFETY ACT, NO. 85 OF 1993;
In terms of Section 8(1) of the Occupational Health and Safety Act, No. 85 of 1993; an employer is obliged 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. So your RISK ASSESSMENT must account for this as must your Safety Officers.

2.4 MINE HEALTH AND SAFETY ACT, NO. 29 OF 1996 Section 2(1) and Section 5(1) of the Mine Health and Safety Act, No. 29 of 1996 provides that an employer is required to create, as far as is reasonably practicable, a safe workplace. This may include ensuring that the risk of occupational exposure to HIV is minimised;

2.5 COMPENSATION FOR OCCUPATIONAL INJURIES and DISEASES ACT. This is a special requirement in terms of your Employment Policies which must be addressed. 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. In larger factories and employment sites, we tend to appoint an Occupational Health Nurse as well as a sick bay. This works in favour of the Employer.

2.6 BCEA NO 75 05 1997
Every employer is obliged to ensure that all employees receive certain basic standards of employment, including a minimum number of days sick leave (See Section 22(2)).

2.7 MEDICAL SCHEMES ACT NO 131 OF 1998 A registered Med Aid Scheme may not unfairly discriminate directly or indirectly against its members on the basis of their "state of health". Further 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

2.8 COMMON LAW AND CONSTITUTION If you take a look at both the Common Law and the Constitution, in particular 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.

2.9 PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION ACT, NO. 4 OF 2000.

3. GOALS OF THE CODE
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The code issued by the Minister carries with it certain long-term goals, which must be taken into account when drafting an Internal Code for the Company Employer. Although, similarly to all other Codes of Conduct, one for HIV AIDS while keeping to the specified requirements should also meet with the specific industry and style of management of any company, should also take into account the goals which are: -
3.1 eliminating unfair discrimination in the workplace based on HIV status;
3.2 promoting a non-discriminatory workplace in which people living with HIV or AIDS are able to be open about their HIV status without fear of stigma or rejection;
3.3 promoting appropriate and effective ways of managing HIV in the workplace;
3.4 creating a balance between the rights and responsibilities of all parties; and
3.5 giving effect to the regional obligations of this country as a member of the Southern African Development Community.

4. OBJECTIVES
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In terms of interpreting the idea behind the Code and its objectives, we must outline that there are two objectives - a Primary and a secondary.
4.1. THE PRIMARY OBJECTIVE.
This includes but is not limited to the following:-
i) Creating a non-discriminatory work environment;
And this is in keeping will all present Labour Laws and is a requirement for compliance of all Codes of Conduct;
ii) Dealing with HIV testing, confidentiality and disclosure;
There can be no testing save where the Labour Court has so ordered and there must be complete confidentiality at all times. Should the employer disclose the HIV or AIDS status of any employee, the employee has the right to both declare a dispute and proceed to Arbitration and prosecute a claim for civil damages;
iii) Providing equitable employee benefits;
As normal, there has to be complete consistency and all employees, regardless of status or orientation must be given the same benefits.
iv) Dealing with dismissals
There can be no difference in your disciplinary and Dismissal Procedures when dealing with an HIV or AIDS positive employee. But from our part we must strongly advise to exercise extreme caution when a known HIV /AIDS sufferer is brought before a disciplinary Procedure as there can always be the claim afterwards that the action taken was because of the illness.
Further, there should be mention of HIV /AIDS policy both in your internal RULE BOOK (and yes you must have one of these) and your Code for Discipline. When an HIV/AIDS employee gets too ill to work, the procedure for Terminations due to Operational Circumstances must be used.
v) Managing grievance procedures
As you by now SHOULD know, to be in Compliance with the New Amendments to Labour Law you must be in possession of a number of Codes of Conduct including one for Grievance. In fact, from where we sit and how we interpret the New Amendments, you need basically three different Grievance Procedures, and just for the benefit of anyone who is reading one of our info sheets for the first time, let me just overview these for you:-
a) INTERNAL GRIEVANCE PROCESS - for normal gripes and problems;
b) AN HIV / AIDS PROCESS - probably incorporated into a) above but specifically relating to HIV /AIDS and implemented in a similar manner to that we advise for Sexual Harassment;
c) SEXUAL HARASSMENT PROCESS - please see our last info sheet on this one or email the office and we will send you a copy. But in brief, this requires a specific internal procedure;
The Grievance process for HIV/AIDS however, as in the one for sexual harassment, must carry with it specified confidentiality and non-disclosure.

4.2. SECONDARY.
i) creating a safe working environment for all employers and employees;
ii) developing procedures to manage occupational incidents and claims for compensation;
iii) introducing measures to prevent the spread of HIV;
iv) developing strategies to assess and reduce the impact of the epidemic upon the workplace; and
v) supporting those individuals who are infected or affected by HIV/AIDS so that they may continue to work productively for as long as possible.

5.WHAT ARE YOU NOT ALLOWED TO DO. WHAT IS REQUIRED OF YOU.
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It is very simple actually. The Law records that no employee shall be unfairly discriminated against within the employment relationship or within any employment policies or practices implemented at an Employer Company. This is exacerbated when relating to persons with disabilities (see our info sheet on this one); with race, colour, sex and creed etc and with regard to HIV and AIDS.
5.1 WHAT POLICIES OR PRACTICES ARE WE ON ABOUT HERE?
ALL OF THEM. These would include but not be limited to: -
* Placement, Screening and Recruitment;
* Promotions, appointments, demotions, transfers;
* Post classifications, grading and similar;
* All terms and conditions of employment;
* All Codes of conduct; contracts, company rules;
* Workplace facilities and workstations;
* Training and development;
YOU MUST BE GETTING THE PICTURE BY NOW…SURELY? If not let us know.

5.2. REQUIREMENT - PROMOTE A NON-DISCRIMINATORY WORK
ENVIRONMENT
In terms of Labour Law, it is incumbent on YOU the employer to have a work environment which obeys the law; is fully COMPLIANT with the Law and which "promotes a non-discriminatory work environment based on the principle of equality, of all employees"
You must understand that Trade Unions view their role as an active participant in "promoting" this environment and would I opine, start moving towards disputes when they believe that their suggestions are being overlooked.
The minister actually "CALLS ON" both Employers and Trade Unions to "adopt appropriate measures to ensure that employees with HIV and AIDS are not unfairly discriminated against and are protected from victimisation through positive measures"
WHAT DO YOU THINK THE MINISTER MEANS? And how do you believe the Trade Unions will interpret that??????
So it becomes imperative that Employers get together to decide HOW the company is going to implement such a code and then get it done - preferably before the company is forced to do so by a Trade Union using mechanisms that may "not be to the liking" of management.

5.3 BUT WHAT MUST AN EMPLOYER COMPANY DO?????????
Aside from Compliance with all Labour Laws, there are a number of issues which require the Employer both to add to a Code of Conduct and to implement. However, please understand that these requirements revolve around other issues and policies as well.
Lets have a close look: -
i) To Develop an HIV / AIDS policy IN WRITTEN FORM and made known to all employees that would serve to revent unfair discrimination and stigmatisation of people living with HIV or AIDS;
ii) Through education and training, to create an awareness of HIV and AIDS. And in this, understand that YOU MUST HAVE a training programme for your employees and that they HAVE A RIGHT TO BE TRAINED. So, you must incorporate this Awareness education in your training schedules;
iii) You must have a specific vehicle or mechanism through which there is not only understanding and awareness of HIV / AIDS but also to promote acceptance;
iv) You as the employer must have a written and laid out policy on how the company will provide support for any infected employees;
v) And of course, there must be a specific Grievance Process;

6. TESTING.
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It is now accepted, or should by now be accept it, that you cannot under any circumstances insist that an existing employee go for any type of testing including for HIV and AIDS. Nor can the employer make that a condition for employment by a candidate applying for a job.
However, an Employer can approach the Labour Court and make specific application for either an existing employee or job applicant to have an HIV/AIDS test.
Yes I know the argument I have been given by certain of our clients and delegates at Training Sessions to the effect that the Employment Equity Act (EEA) does make provision for testing.
Those persons who bring out this argument are referring to section 7(2) of the Employment Equity Act which prevents an employer-provided health service from supplying a test to an employee who requests a test, and depends on whether the Labour Court would accept that an employee can knowingly agree to waive the protection in the section. This issue has not yet been decided by the Court.
6.1 WHAT CONSTITUTES AUTHORISED TESTING?
I would say that in the context of the question, the answer would have to be NOTHING. An employer cannot carry out any testing unless an application before the Labour Court has been approved. In this regard, the Employer can approach the Labour Court whenever it is believed to be necessary including at time of job interview; to make it a condition of employment; etc
6.2 PERMISSABLE TESTING
An employer may provide testing to an employee who has requested a test in the
following circumstances:
i) As part of a health care service provided in the workplace;
ii) In the event of an occupational accident carrying a risk of exposure to blood or other body fluids;
iii) For the purposes of applying for compensation following an occupational accident involving a risk of exposure to blood or other body fluids.
6.3 WHEN "TESTING MAY TAKE PLACE"?
i) Furthermore, such testing may only take place within the following defined conditions:
ii) At the initiative of an employee;
iii) Within a health care worker and employee-patient relationship;
iv) With informed consent and pre- and post-test counseling, as defined by the Department of Health's National Policy on Testing for HIV; and
v) With strict procedures relating to confidentiality of an employee's HIV status as described in clause 7.2 of this Code.

NOTE: All testing, including both authorised and permissible testing, should be conducted in accordance with the Department of Health's National Policy on Testing for HIV issued in terms of the National Policy for Health Act, No. 116 of 1990.
6.4 WHAT IS INFORMED CONSENT.
Informed consent means that the individual has been provided with information,
understands it and based on this has agreed to undertake the HIV test. It implies that the individual understands what the test is, why it is necessary, the benefits, risks, alternatives and any possible social implications of the outcome.

7. PROMOTING A SAFE WORKPLACE
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An employer is obliged to provide and maintain, as far as is reasonably practicable, a workplace that is safe and without risk to the health of its employees. The risk of HIV transmission in the workplace is minimal. However occupational accidents involving bodily fluids may occur, particularly in the health care professions. Every workplace should ensure that it complies with the provisions of the Occupational Health and Safety Act, including the Regulations on Hazardous Biological Agents, and the Mine Health and Safety Act, and that its policy deals with, amongst others :
i) The risk, if any, of occupational transmission within the particular workplace;
ii) Appropriate training, awareness, education on the use of universal infection control measures so as to identify, deal with and reduce the risk of HIV transmission in the workplace;
iii) Providing appropriate equipment and materials to protect employees from the risk of exposure to HIV;
iv) The steps that must be taken following an occupational accident including the appropriate management of occupational exposure to HIV and other blood borne pathogens, including access to post-exposure prophylaxis;
v) The procedures to be followed in applying for compensation for occupational infection;
vi) The reporting of all occupational accidents; and
vii) Adequate monitoring of occupational exposure to HIV to ensure that the requirements of possible compensation claims are being met.

8. COMPENSATION FOR OCCUPATIONALLY ACQUIRED HIV
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An employee may be compensated if he or she becomes infected with HIV as a result of an occupational accident, in terms of the Compensation for Occupational Injuries and Diseases Act. Employers should take reasonable steps to assist employees with the application for benefits including:
i) providing information to affected employees on the procedures that will need to be followed in order to qualify for a compensation claim;
ii) assisting with the collection of information which will assist with proving that the employees were occupationally exposed to HIV infected blood.
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9. MANAGEMENT OF HIV IN THE WORKPLACE (Part of Risk and Impact Assessment).
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The effective management of HIV/AIDS in the workplace requires an integrated strategy that would include but not be limited to the following:-
9.1 As part of your Risk and Impact assessment, a written assessment of the impact of
HIV/AIDS in your specific environment and an understanding of the measures YOU can address that will reduce this impact, including:
i) An HIV/AIDS Policy for the workplace
ii) HIV/AIDS Programmes, which would incorporate Ongoing sustained prevention of the spread of HIV among employees and their communities;
iii) Management strategy of employees with HIV so that they are able to work productively for as long as possible;
iv) Strategies to deal with the direct and indirect costs of HIV/AIDS in the workplace.

9.2 FURTHER KEY POINTS IN YOUR RISK ASSESSMENT.
i) RISK PROFILES which would include: -
* The vulnerability of individual employees or categories of employees to HIV infection;
* The nature and operations of the organisation and how these may increase susceptibility to HIV infection (eg migrancy or hostel dwellings);
* A profile of the communities from which the organisation draws its employees;
* A profile of the communities surrounding the organisation's place of operation;
* An assessment of the impact of HIV/AIDS upon their target markets and client base.

9.3 The assessments should also consider the impact that the HIV/AIDS
epidemic may have on Direct and Indirect costs.
DIRECT COSTS such as costs to employee benefits, medical costs and
increased costs related to staff turnover such as training and recruitment
costs and the costs of implementing an HIV/AIDS programme;
INDIRECT COSTS such as costs incurred as a result of increased
absenteeism, employee morbidity, loss of productivity, a general decline
in workplace morale and possible workplace disruption;
The cost effectiveness of any HIV/AIDS interventions should also be measured as part of
an impact assessment

10.WHAT SHOULD A CODE OF CONDUCT CONTAIN?
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In simplified terms, when we are asked to draft a code for a client, ALL of the above elements are written in and married to the appropriate management style and specific industry of the company.
In brief and point form however, I will overview the content:-

10.1 The position and policy of your management concerning HIV/AIDS;
10.2 An HIV /AIDS Programme and an outline of what that programme is;
10.3 Employment policies regarding HIV testing, employee benefits, performance management and procedures to be followed to determine medical incapacity and dismissal for INCAPACITY;
10.4 Name/s of a DESIGNATED PERSON/s either from within company or outsourced to:-
i) Facilitate the awareness programmes;
ii) Create and deliver specified training;
iii) Be available to consult with affected employees and prepare Counselling;
iv) Be available to handle all confidential complaints in terms of the Grievance Procedure;
v) Handle all necessary employment terminations iro incapacity and to ensure PROCEDURAL CORRECTNESS;
10.5 Your specific Grievance Procedure;
10.6 The mechanisms your company will use to communicate on issues pertaining to HIV/AIDS, employee assistance; evaluation procedures etc;
10.7 What development and awareness programmes will be initiated by the company and how these will be achieved;
10.8 What training will be developed and initiated by the company and an indication of the time frame;
10.9 Condom policy (how and when will you give these out);
10.10 Your policy on how you will encourage good health and safe sex practices;
10.11 How you will encourage voluntary testing;
10.12 How you will use methods of universal infection control measures;
10.13 How you will create an environment that is conducive to openness, disclosure and acceptance amongst all staff and then endeavour to establish a wellness programme for employees affected by HIV/AIDS;
10.14 How you will provide access to counseling and other forms of social support for people affected by HIV/AIDS;
10.15 How you will maximise the performance of affected employees through reasonable accommodation, such as investigations into alternative sick leave allocation and develop strategies to address direct and indirect costs associated with HIV/AIDS in the workplace;

This has been a very BRIEF overview of what a Code for HIV/AIDS is all about? Where we can be of assistance to you, please do not hesitate to email us or call us at your convenience.

And please remember that we do have a specific Management Training Course on ADVANCED COMPLIANCE with the NEW AMENDMENTS where we will take an in-depth look at all codes, including HIV/AIDS and how to draft them in order to be compliant.

LABOUR JUSTICE Tel: 0721768309 E-mail: info@labourjustice.com

We also have all back editions of the information sheets / newsletter as required.
Topics: Hours of work; Disciplinary process; Content of Employment Contracts; Dismissals; New Amendments; and Others.

PS. AND IF YOU ARE STILL READING DOWN TO THIS PAGE PLEASE REMEMBER OUR NEXT MANAGEMENT TRAINING COURSES: -
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