'Love thy labour' is a weekly column published in the Cape Argus, written by labour law expert Michael Bagraim. Picture: Tracey Adams/African News Agency/ANA
There is a special duty of care owing by the employer to the employee. This duty of care has to be managed properly and in line with fairness at the workplace and creating a non-discriminatory work environment.

Should an employee come forward to human resources or to senior management in order to disclose a health issue, this disclosure should be kept confidential and should be properly managed so as to ensure the well-being of the employee and the well-being of other staff interacting with that employee. If an employee indicates that he or she is, for instance, suffering from depression, the management needs to ensure that help is given on almost every level.

The Department of Labour specifically outlined a Code of Good Practice with regard to key aspects of HIV/Aids and employment. This was brought into our law on December 1, 2000, and today serves as a guide and a beacon of light with regard to the handling of other illnesses at the workplace. There is a specific structure with regard to the management of HIV in the workplace, and the code gives guidelines on assessing the impact of HIV/Aids on the workplace.

It is recognised that all illness will affect every workplace, and especially those with prolonged illnesses. The effect will be absenteeism, and even death, which obviously will impact on the productivity, employee benefits, occupational health and safety, production costs and workplace morale. We all know that disease knows no social, gender, age or racial boundaries, but it is accepted that socio-economic circumstances do influence disease patterns.

Many diseases thrive in an environment of poverty, rapid urbanisation, violence and destabilisation. It is vital for every employer to read the Code of Good Practice on the handling of diseases, and in particular the HIV/Aids code. An employer must read this code with Schedule 8 to the Labour Relations Act to correctly follow a structured process with regard to the possibility of short-term or long-term illness.

Employers are encouraged to implement policies and programmes which will be developed as guidelines for employers, trade unions and employees. If there is a trade union active at the workplace, the trade union should be encouraged to sit with the employer so as to develop a Code of Good Practice. These codes would eliminate unfair discrimination in the workplace and create a balance between the rights and the responsibilities of all the parties. In particular, with regard to dealing with HIV there should be structures dealing with the testing, confidentiality and disclosure. These codes would require a holistic approach and take many factors into account. Obviously, there must be a safe working environment for all employers and employees.

The procedures managing the diseases will properly outline strategies to assess and reduce the impact on the individual and the workplace. It is best to have a structure so that people may continue to work productively for as long as possible. All employers are encouraged to ensure that the codes and their practices are in line with the Employment Equity Act and The Labour Relations Act. Obviously, the Occupational Health and Safety Act would be taken into account, as read with The Basic Conditions of Employment Act.

When the code is developed and implemented, all the labour legislation must be respected and be read in conjunction with the outline and the practice. It must be remembered that no person may be unfairly discriminated against on the basis of their status. No employee or applicant may be forced to undergo an HIV test, and only where the Labour Court has declared that the testing must be done can this be demanded. Obviously, with communicable diseases it would be extremely unfair for an employer not to ensure that this disease is not spread to other staff members.

The medical profession normally does intervene when the disease would be negative for people who come into contact with that employee. In terms of The Basic Conditions of Employment Act, every employer is obliged to ensure all employees enjoy certain basic standards such as a minimum number of days sick leave. An employer is obliged to provide, as far as is reasonably practicable, a workplace that is safe and without risk to the health of its employees.

Employees with HIV Aids may not be dismissed on the basis of their HIV Aids status. When an employee has become too ill to perform their work, an employer is obliged to follow accepted guidelines regarding dismissal for incapacity before terminating that employee’s services.

* Michael Bagraim is a labour lawyer.

** The views expressed here are not necessarily those of Independent Media

Cape Argus