Employment Equity Act

The Code was issued in terms of Section 54(1)(a) of the Employment Equity Act, No. 55 of 1998, and is based on the principle that no person may be unfairly discriminated against on the basis of their HIV status. In order to assist employers and employees to apply this principle consistently in the workplace, the Code makes reference to other pieces of legislation. No employee, or applicant for employment, may be required by their employer 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.

The Act applies to all employers and workers and protects workers and job seekers from unfair discrimination, and also provides a framework for implementing affirmative action.

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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 simply because he or she 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).

Summary: For an introduction and list of all Acts and Amendments as well as a range of guides, see:

The Labour Relations Act and Amendments (LRA), Act 66 of 1995 aims to promote economic development, social justice, labour peace and democracy in the workplace.

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Occupational Health and Safety Act

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.

The Occupational Health and Safety Act aims to provide for the health and safety of persons at work and for the health and safety of persons in connection with the activities of persons at work and to establish an advisory council for occupational health and safety.

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Compensation for Occupational Injuries and Diseases Act

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.

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The Basic Conditions of Employment Act

In accordance with the Basic Conditions of Employment Act, No. 75 of 1997, every employer is obliged to ensure that all employees receive certain basic standards of employment, including a minimum number of day’s sick leave [Section 22(2)].

The Basic Conditions of Employment Act and Amendments applies to all employers and workers and regulates leave, working hours, employment contracts, deductions, pay slips, and termination.

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The Medical Schemes Act

In accordance with Section 24(2)(e) of the Medical Schemes Act, No 131 of 1998, a registered medical aid scheme may not unfairly discriminate directly or indirectly against its members on the basis of their “state of health”. Further in terms of s67(1)(9) regulations may be drafted stipulating that all schemes must offer a minimum level of benefits to their members.
The Medical Schemes Act No 131 of 1998 aims to consolidate the laws relating to registered medical schemes; to provide for the establishment of the Council for Medical Schemes as a juristic person; to provide for the appointment of the Registrar of Medical Schemes; to make provision for the registration and control of certain activities of medical schemes; to protect the interests of members of medical schemes; to provide for measures for the coordination of medical schemes; and to provide for incidental matters.

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Common law and the Constitution

In accordance with both the common law and 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.