Business Day, 26 November 2002, HIV/Aids Code May Benefit All Parties

Government's recommended HIV/AIDS Code of Good Practice could have significant benefits for employer-employee relations, says Janette Clark, business management director at Glenrand MIB Health Risk Management Consultants.

The code sets out to create a balance between the rights and responsibilities of all parties, while aiming to establish a safe working environment and facilitating strategies to reduce the effects of the disease.

It could become mandatory for JSE Securities Exchange SAlisted companies to disclose next year what management strategies they are deploying to manage HIV/AIDS and minimise its financial effect on companies.

From an implementation point of view, she sees the code as a promising framework for defusing potentially adversarial situations between employers and employees on HIV/AIDS issues.

"It's going to take goodwill on both sides. However, the code, although in our view flawed in some respects, is basically a sound document with solid policy principles," says Clark.

In general, the policy is scoped to broadly define the workplace to encompass providers, suppliers and contract workers. It does not impose legal obligations, but must be read in conjunction with other Acts such as the Labour Relations Act 1995 and Employment Equity Act.

Fundamentally it seeks to promote a nondiscriminatory workplace and prevent victimisation. Moreover, for the first time it lays out guidelines for confidentiality, disclosure and testing protocols.

"To date, corporates have basically done their own thing in this respect, so this is a welcome development," says Clark.

Further aspects of the code embrace access to employment equity benefits and dismissal, grievance procedures and management of HIV/AIDS.

On the issue of victimisation, she says it sets out the parameters for development of an HIV/AIDS policy, including awareness, education, training and the rights of workers living with the disease.

It suggests mechanisms to promote openness and acceptance of those living with HIV/AIDS, and sets out suggested grievance procedures and disciplinary measures to deal with HIV/AIDS-related complaints.

As for the thorny questions of authorised testing, confidentiality and disclosure, she says the code identifies the crucial points at which this could take place, including upon application for employment, as a condition of employment, during procedures relating to termination of employment, as an eligibility requirement for training staff or development programmes, and as an access requirement to obtain employee benefits.

A crucial matter is that the code will require testing to be conducted with the written agreement of the worker. "Rights to privacy in this respect are in no way to be impinged and the right to privacy remains entrenched in the constitution," says Clark.

On the other hand, she says corporates need information for obvious reasons and an environment of acceptance through education and awareness, support and elimination of prejudice and discrimination therefore needed to be created.

Grievance procedures were a further tricky area, she said. The code therefore recommended that human resource policies integrate the rights of workers living with HIV/AIDS into company policies.