Compliance with revised Act cannot ignore practical realities

The Code states that HIV/AIDS affects every workplace through prolonged staff illness, absenteeism or death. HIV/Aids, associated with TB and STIs, negatively affects productivity, employee benefits, health and safety precautions, production costs, and workplace morale.

The objectives of the Code further suggest that policies and programmes must be developed within the framework of decent formal and informal, public and private sector work to any employed person in any occupation, training or volunteer work or any person who is job hunting or who has been laid-off or suspended from work.

Ten key principles

The objectives include eliminating unfair discrimination in the workplace based on real or perceived HIV/Aids status, including dealing with HIV/Aids testing, confidentiality and disclosure, as well as promoting access to information on employee benefits and protection in this regard. The objectives further strive to create a safe and healthy working environment, manage grievance procedures relating to HIV/AIDS, and to give effect to international and regional obligations on HIV/AIDS and TB in the world of work.

In addition, the Code sets out ten key principles, such as suggesting that the workplace must facilitate access to comprehensive information and education to reduce the risk of HIV/Aids transmission, HIV/Aids-TB co-infection and STI's. Additionally, the Code stipulates that a workplace must be safe and healthy for all workers, and that employees must benefit from programmes to prevent specific risks of occupational transmission of HIV/Aids and related transmissible diseases, such as TB, especially in jobs most at risk, such as health care.

The Code takes some cognisance of other laws when it refers to 13 laws that apply to the subject matter covered by the Code, and provides a thorough and straightforward cross-survey of pertinent legislative provisions.

Laws place duties on employers

"However, the purpose of the Code as a guide, and the Code being subject to the Employment Equity Act itself and other interacting laws must not be forgotten," says Julie Methven, CEO of The Compliance Institute Southern Africa. "Neither must the limited reference to 13 other laws within the Code be deemed sufficient for business compliance-risk-governance. For example, the Promotion of Access to Information Act gives further insight into preserving confidentiality and limiting disclosure to warranted areas.

"As another example, laws such as the Occupational Health and Safety Act and Mine Health and Safety Act place duties on employers to take reasonable measures to safeguard employees and people on their premises. In this context one may need to determine a policy that is acceptable in the greater ambit of the law and not only the Code, to deal with the risk of drug-resistant TB spreading in the workplace," she says.

"A policy dealing with infectious diseases in general is important as such diseases are a grave concern in our country, but such a policy remains a challenge. Apart from some references in the Code, such as draft communicable disease regulations under the National Health Act and specific Regulations on Hazardous Biological Agents, we have very little guidance on dealing with an outbreak of any infectious disease or simply the avoidance thereof. Every employer will need to apply their mind to the risk within their specific client and employee environment. The above simply strengthens the argument that compliance cannot ignore practical realities, or be considered in a vacuum, or separated according to business divisions," concludes Methven.