Legal considerations for an HIV/Aids policy document

There are a number of human rights, legal, and corporate governance issues that companies need to consider when producing a formal HIV/Aids policy.

legal_scalesThe Second King Report on Corporate Governance has also included a number of new non-financial risk factors that are required to be reported to stakeholders. HIV/AIDS is one such factor and the report provides an excellent succinct set of recommendations. Less than 40% of companies surveyed are reporting on HIV/AIDS – in line with the number of companies that appear to have implemented HIV/AIDS programmes.

However, there are a large variety of valuable resources available to assist in implementing an excellent policy that takes into account legislation dealing with this issue.

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The Charter of Rights on AIDS and HIV was drafted in 1991 and developed in 1992 through a process of wide consultation by The Centre for Applied Legal Studies (University of the Witwatersrand). In November 1992, it was launched at a conference of over 300 people, and supported by many organisations and individuals. These included political and religious leaders, artists, community organisations and international leaders.

The Code of Conduct

The Code should be read in conjunction with the Constitution of South
Africa Act, No. 108 of 1996, and all relevant legislation, which includes
the following:

  • Mine Health and Safety Act, No. 29 of 1996
  • Medical Schemes Act, No 131 of 1998
  • Promotion of Equality and Prevention of Unfair Discrimination Act, No. 4 of 2000.

To read the full code, click here .

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Right Law
Right to fair labour practices Constitution and Labour Relations Act (LRA)
Right not to be unfairly dismissed because you have HIV Labour Relations Act (LRA)
Right not to be unfairly discriminated against on the basis of your HIV status Employment Equity Act (EEA)
Right not to be tested for HIV unless your employer has applied to the Labour Court for authorisation Employment Equity Act (EEA)
Right to a safe working environment Occupational Health and Safety Act, and Mine Health and Safety Act
Right to compensation if infected with HIV at work Compensation for Occupational Injuries and Diseases Act (COIDA)
Right to certain basic standards of employment, including six weeks of paid sick leave over a three-year period Basic Conditions of Employment Act (BCEA)
Right to no unfair discrimination in giving employee benefits Medical Schemes Act
Right to privacy about your HIV status at work Common law right


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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.

Click here to read the Act.

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.

Click here to see the Act.

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.

Click here to read more.
Click here to read the Amended Act:

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.

Click here to read more.
Click here
 to read the Act.

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.

Click here to read more.
Click here to read the Amended Act.

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.

Click here to read more.

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.

Click here to read more.

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The South African Chamber of Business offers a number of guides and resources that business should consider.
The Nedlac code of good practice on key aspects of HIV/AIDS and employment
The Code’s primary objective is to set out guidelines for employers and trade unions to implement so as to ensure individuals with HIV infection are not unfairly discriminated against in the workplace.

Click here to read more.

The International Labour Organisation’s Code of Practice on HIV/AIDS and the world of work

The Code has been launched worldwide and has won a great deal of political support and commitment. To date, it has been translated into over 20 languages. The UN is using it as the framework for its own personnel policy.

Click here to read more.

Reporting Guidance On HIV/AIDS: A Global Reporting Initiative (GRI) resource document

The document offers a practical reporting framework for:

  • Organisations that want to report on their performance – including policies and practices – with respect to HIV/AIDS
  • Stakeholders that require a reputable reporting benchmark to measure or compare organisations’ HIV/AIDS performance.

The document was developed in South Africa and GRI believes its content will be useful in any country affected by HIV/AIDS.

Click here to read more.

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The tax treatment of medical scheme contributions and other medical expenses was changed with effect from 1 March 2006.
Below is a summary from the Treasury of the previous and new tax dispensation of contributions to medical schemes and other medical expenses.

Contributions to medical schemes

Members of a medical scheme can make contributions to the medical scheme themselves, their employers can make the contributions or contributions can be split between an employee and the employer.

In terms of the previous legislation, only the employer contribution qualified for some preferential tax treatment (i.e. there was no taxable value placed on the employer contribution to the extent that it did not exceed 2/3’s of the total contribution). The member making medical scheme contributions out of his own pocket was not entitled to the same preferential tax treatment for such contributions.

In terms of the new legislation, all (i.e. 100% of) contributions will qualify for preferential tax treatment irrespective of who makes the contribution. This preferential tax treatment will be limited to a monetary amount of R500 for each of the first two beneficiaries and R300 for each additional beneficiary. The “2/3 rule” fell away.

Employer provided medical treatment

Previously, no taxable benefit arose for the employee where the employer provides medical treatment to employees at their place of work. Such medical treatment is normally covered under a company’s occupational health initiative. However, when medical treatment was provided to employees’ families, employees were liable to pay tax on the value of this benefit. Where the employer paid for medical treatment for the employee and/or his family and this treatment was provided at a place other than the employee’s workplace, the employee had to pay tax on the value of this benefit.

In terms of the new tax dispensation, all benefits derived from employer-provided medical treatment (on- and off-site) is tax-free in the hands of the employee, provided certain criteria are met. Only Prescribed Minimum Benefits may be provided tax-free at an off-site location. In cases where the off-site employer-provided medical treatment constitutes the business of a medical scheme, it must be granted exemption from complying with the requirements of a medical scheme by the Registrar of Medical Schemes to qualify for tax-free treatment. Where the off-site medical treatment does not constitute the business of a medical scheme, it may be provided tax-free if it is only provided to employees (or their immediate dependants) who are not members of a medical scheme.