Business Day, 04 November 2002, Legality of workplace HIV testing questioned

Science and Education Correspondent

IN A bid to resolve widespread confusion within the legal fraternity about the legality of conducting workplace HIV testing, the AIDS Law Clinic is considering approaching the Labour Court for a declaratory ruling on the matter.

At issue is whether or not all HIV workplace testing including voluntary anonymous testing requires prior approval from the Labour Court. The legal fraternity is divided on the matter, with some law firms advising their clients to get the court's permission even for the voluntary HIV testing (and counselling) that typically forms part of workplace HIV/AIDS awareness and prevention programmes.

Voluntary counselling and testing also form an integral part of HIV/AIDS policies that can culminate in the offer of antiretroviral medicines for employees who are HIV-positive.

Law firms such as Webber Wenzel Bowens and Cliffe Dekker warn that if companies fail to seek permission from the Labour Court before they embark on any kind of workplace HIV testing, they run the risk of future costly claims of unfair discrimination by their employees.

However, this view is not shared by all law firms. Daniel du Plessis, an attorney with labour law firm Michael Bagraim & Associates, said he did not believe the Employment Equity Act prohibited workplace HIV testing if the employee had initiated it.

Jennifer Joni, an attorney with the AIDS Law Clinic, said the organisation was concerned about the confusion within the legal fraternity, due in part to a Labour Court judgment earlier this year, which ruled that in terms of the Employment Equity Act, HIV testing in the workplace was prohibited unless the Labour Court deemed it to be justifiable.