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Employers of domestic workers are apparently particularly concerned about the risk for their children being infected

Matthias Ruziwa and Alyson Martens HIV/AIDS and the Workplace
At the Institute of People Management in Zimbabwe`s Labour Briefing held on November 19 2014, the Ministry of Public Service, Labour and Social Welfare announced that it had promulgated a new Statutory Instrument (SI 105 of 2014) to regulate issues on HIV/AIDS at the workplace.

Because the incidences of HIV/AIDS continue to grow, affecting a greater number of the working population, the disease is also rapidly becoming a major issue for employers. HIV/AIDS does have implications for employers in such areas like talent acquisition, de-recruitment, training, promotions, benefits as well as health and safety at the workplace.

Due to the growing prevalence of HIV/AIDS in society, employers are experiencing an increasing impact at the workplace characterised by absenteeism and speculation about the risks to non-infected persons. In this article, we shall look at whether or not employers are permitted to assess the extent of the disease in their workplace or even go so far as to determine the identities of those who are infected.

Ignorance about the risks related to HIV/AIDS poses a real danger to discrimination against employees or applicants for employment. One only has to take cognisance of recent reports in South Africa about rampant discrimination against domestic workers due to their HIV/AIDS status to appreciate the magnitude of the problem.

Employers of domestic workers are apparently particularly concerned about the risk for their children being infected. It is more likely that other employers may also feel that the nature of their business is such that an employee infected with HIV/AIDS could place others at risk of being infected.

At the Institute of People Management in Zimbabwe’s 2015 Labour Briefing held on November 19, 2014, the Ministry of Public Service, Labour and Social Welfare announced that it had promulgated a new statutory instrument (SI 105 of 2014) to regulate issues on HIV/AIDS and the workplace.

This new law replaced Statutory Instrument 202 of 1998 since it had became obsolete as more information on the HIV/AIDS pandemic has been availed since 1998. The new HIV/AIDS regulations have also been brought in line with International Labour Organisation (ILO) recommendation 200 of 2010. During the Labour Briefing, the ministry highlighted that it was aware that cases of discrimination and stigmatisation are still rampant in Zimbabwean workplaces but very few are reported.

The ministry said: “We do not have any precedent cases from higher courts on discrimination due to one`s HIV/AIDS status. May we take this opportunity to challenge those who have been discriminated due to their status to report to our Labour Offices?”

What is an Employer entitled to do?

A) Prohibition of HIV Testing

Section 9 of the new Labour (HIV and AIDS) Regulations 2014, SI 105 of 2014 provides that;

1) No employer shall require, whether directly or indirectly, any person to undergo HIV testing or any other forms of screening for HIV as a pre-condition to the offer of employment.

2) Subsection (1) above shall not prevent the medical testing of persons for fitness for work as pre-condition to the offer of employment.

3) Section 10 further stipulates that it shall not be compulsory for any employee to undergo directly or indirectly any testing for HIV. Furthermore, no employer shall require any employee and it shall not be compulsory for any employee to disclose in respect of any matter whatsoever in connection with his or her employment, his or her HIV status.

B) Discrimination

The Labour Act, (Cap 28:01) stipulates in Section 5 (1) that;

“(1) No employer shall discriminate against any employee or prospective employee on grounds of race, tribe, place of origin, political opinion, colour, creed, gender, pregnancy, HIV/AIDS status or, subject to the Disabled Persons Act [Chapter 17:01], any disability referred to in the definition of “disabled person” in that Act, in relation to:

(a) the advertisement of employment; or

(b) the recruitment for employment; or

(c) the creation, classification or abolition of jobs or posts; or

(d) the determination or allocation of wages, salaries, pensions, accommodation, leave or other such benefits; or

(e) the choice of persons for jobs or posts, training, advancement, apprenticeships, transfer, promotion or retrenchment; or

(f) the provision of facilities related to or connected with employment; or

(g) any other matter related to employment.

In addition to the provisions of the Labour Act cited above, Section 11 of the new Labour (HIV and AIDS) Regulations 2014, SI 105 of 2014 provides that;

1) No employer shall discriminate against or stigmatise workers, in particular, job seekers and job applicants on the grounds of real or perceived HIV status.

2) No employer shall prejudice an employee in relation to promotion, transfer, training or other employee development programme on the basis of the employee`s real or perceived HIV status.

3) Real or perceived HIV status shall not be a ground for discrimination preventing the recruitment or continued employment of a worker.

4) Real or perceived HIV status shall not be cause for termination of employment.

5) A person with HIV-related illness shall not be denied the possibility to carry out their work, with reasonable accommodation, if necessary for as long as they are medically fit to do so.

Wellness in the workplace is of great concern to employers. A workforce that is both able and available to deliver results is essential. Due to legal, ethical and moral responsibilities to support employees, employers are also bound to ensuring the well-being of employees.

It is against this background that we are encouraging employers to effectively put in place policies for managing the HIV/AIDS pandemic in our individual organisations. We need not remind employers that it is in their best interest to prolong the productive life of employees and to minimise the numbers of HIV infected employees through intensive workplace prevention programmes and partnerships with community-based health organisations.

 Matthias Ruziwa is an experienced and growing Human Resource Practitioner while Alyson Martens is an Industrial Psychologist. Both are practising in the Midlands Province, City of Kwekwe. You can contact either Matthias or Alyson at the following email addresses: [email protected] <mailto:[email protected]> /whatsapp 0773 470 368; [email protected] <mailto:[email protected]>