Presentation to the Portfolio Committee on Labour on the Employment Equity Act
Business South Africa
11 April 2000

BSA initiatives

· Presentations in major centres on new Act

· Jointly funded by ILO and business

· Employer organisations issue own training brochures

· Benchmarking and sharing of experiences

· Active participation in Employment Equity Commission

· Generally little resistance experienced: accept the importance of empl. equity

Preparation of EE reports

· Parties are engaged in consultation: very time consuming

· Draft plans are being considered in workplaces

· Most large employers seem to be geared to submit first report on 1 June

· Lack of data on pool of skills; benchmarking

· Jurisprudence: case law is being built up

Income differentials: requirements of EEA s27

· EEA requires employer to reduce "disproportionate differentials"

· Measures to reduce may include -

· collective bargaining

· sectoral determinations

· applying norms and benchmarks

· skills development

Causes of income differentials

· Disproportionate differentials are caused by:

· High unemployment among the unskilled

· Skills shortages among the skilled

· Poor education and training

· Low productivity

· Discrimination

· Discrimination in wages must be addressed - s6 of EEA will enable this

· Address other causes at their root

Unintended consequences of s27

· Freeze executive pay - S A will lose its job creators to foreign competitors

· Artificially increase cost of labour - S A will export jobs, and more mechanisation

· Employers will outsource and subcontract: increased job insecurity

· Increased strike incidence as a result of a new issue on bargaining table?

Small business

· EEA includes businesses with less than 50 employees with a "high" turnover (between R2m and R25m)

· At least 80 000 employers employ more than 50 employees

· How many more has a "high" turnover?

· Administrative and management burden is very onerous, even with the simplification for medium businesses

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Employment Equity Act, No.55 of 1998

· Unintended

· Problematic consequences of section 7(2).

Employment Equity Act, No.55 of 1998 - Chapter II: Prohibition of unfair discrimination

Prohibition of unfair discrimination -section 6

(1) No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race,gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture,language and birth.

Employment Equity Act, No.55 of 1998 - Chapter II: Prohibition of unfair discrimination

Medical testing -section 7

(1) Medical testing of an employee is prohibited, unless -

(a) legislation permits or requires the testing;or

(b) it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job.

(2) Testing of an employee to determine that employee’s HIV status is prohibited unless such testing is determined to be justifiable by the Labour Court in terms of section 50(4) of this Act.

Employment Equity Act, No.55 of 1998 - Chapter II: Prohibition of unfair discrimination

Medical testing -section 7(2)

(2) Testing of an employee to determine that employee’s HIV status is prohibited unless such testing is determined to be justifiable by the Labour Court in terms of section 50(4) of this Act.

Note: Section 7(2) was not subjected to Nedlac’s consideration and scrutiny, but was inserted by the Parliamentary Portfolio Committee at the last minute after a very brief debate.

Application of Act when in conflict with other laws - section 63

If any conflict relating to a matter dealt with in this Act arises between this Act and the provisions of any other law than the Constitution or an Act of Parliament expressly amending this Act, the provisions of this Act prevail.

HIV/AIDS- Human rights issues

Workplace

· Primary health care

· National prevention

· Socio-economic issues

· Compensation

· Occupational health care

· Secondary Tertiary health care

Occupational Health and Safety Act No. 85 of 1993
Mine Health and Safety Act No. 29 of 1996

· Both these Acts place an obligation on the employer to, as far as is reasonably practicable, create a safe working environment.

· This implies protection of employees from occupational exposure to HIV in blood and body fluids. This especially applies to health care workers and laboratory workers.

Compensation for Occupational Injuries and Diseases Act No. 130 of 1993
·
Occupational exposure to HIV

· sero-conversion- EEA prohibits testing

· prophylaxis- "best practice" triple drug therapy

Health Care Services Provided by Employers

A large number of employers provide health care services to employees which are intricately linked with the workplace, are situated "on site" and within the control of the employer

· occupational health

· primary health care

· secondary health care

· tertiary health care

· voluntary testing and counselling

Health Care Services Provided by Employers

Beneficent testing and protection of employees

· TB

· meningitis

· pneumonia

· vaccination

Testing for research and managerial purposes

· Linked

· Not allowed without labour court permission

· Anonymously unlinked

Workplace - HIV/AIDS /policy and law - principles

· HIV is a disease - it should be treated as any other serious life threatening, comparable health/medical condition. Employees with HIV/AIDS should be treated in the same way as employees with other comparable illnesses.

"AIDS exceptionalism"

· The same medical ethics principals that govern all health/medical conditions in the employment context should equally apply to HIV/AIDS

· it should consider occupational health principles

· should be based on sound, current, epidemiological data

· Informed of newest developments in science

· it should respect human rights and patient rights - no unfair discrimination

BUT

There should be a balance between:

Rights

Responsibilities

hiv infected’s rights

non-infected’s rights

employees’ rights

employers’ rights

patients’ rights

health care workers’s rights

individual rights

community rights

Recommendation

Repeal section 7(2) but specify HIV in section 7(1) :

7(1) Medical testing, including testing for HIV, is prohibited, unless

(a) legislation permits or requires the testing; or

(b) it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of the job.

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THE PROHIBITION ON HIV/AIDS TESTING

8 March 2000

Introduction

The prohibition on HIV/AIDS testing, specifically section 7(2) of the Employment Equity Act, was not subjected to Nedlac’s consideration and scrutiny, but was inserted by the Parliamentary Portfolio Committee on Labour at the last minute after a very brief debate. The ramifications and negative consequences of a blanket prohibition were not considered.

This document briefly outlines some of the most important problems experienced, and makes some suggestions as to how it could be rectified.

1. All testing, even with consent, is prohibited

The implication of the current wording seems to be that testing of an employee, even with that employee’s consent, is prohibited. Some legal experts argue that this could not have been the intention of the legislator and that such testing is consequently not prohibited. However, this is not clear from the wording, and employers are loath to take any chances on this very sensitive topic.

Consequently, testing for the purposes identified below is not at the moment taking place, and is not in the interests of the employees concerned.

    1. Voluntary testing and counselling at health care services provided by the employer. A number of employers provide the following health care services which are intricately linked with the workplace, are situated "on site" and are within the control of the employer:

However, because of the prohibition, they cannot test any employee, even if approached by the employee wishing to be tested. If there are situations where it is considered appropriate to test, then it should be made clear. The current wording of the Act would prohibit testing of an employee, even where a doctor-patient relationship exists, at health services provided and controlled by the employer.

    1. Beneficent protection of employees. This is discussed in par 2 below.
    2. Medical diagnostic testing. Many medical conditions would require the patient (in this case the employee) to be tested for HIV in accordance with good medical practice. Testing is indicated to make a proper diagnosis and decide on appropriate medical treatment. However, the current wording of the Act prohibits such testing at the health care facilities mentioned above. By implication, recognised best international medical practice can only be implemented after approved by the Labour Court.

1.4 Testing for research purposes. Testing is apparently not allowed even in situations where researchers wish to determine the prevalence of HIV, and the testing is done anonymously and unlinked.

  1. Beneficent protection of employees in the workplace
  2. Testing under controlled circumstances has value because it may be in the best interests of employees to establish their HIV status. The reason is that it will enable employees or the employer to avoid or take precautions against opportunistic infections. For instance, employees with HIV are much more prone to contract tuberculosis. Therefore, employees exposed to the risk of tuberculosis infection should be tested for HIV so that these employees may receive treatment to reduce the risk of tuberculosis infection (such as INH).

    Another example is airline flight crews or diplomatic staff who travel to destinations for which prophylactic inoculation with live vaccines – which might not be clinically recommended for people with HIV/AIDS – is necessary.

  3. Exposure to HIV in the workplace

The accidental exposure to HIV in the workplace requires an immediate HIV test to determine status for compensation purposes. Testing is also required for a further 6 months to check for possible sero-conversion. This has to be done on the instruction of the employer, as the report of such an incident of exposure will be made to the employer. The required action has to be taken in the interest of the employee in accordance with the Compensation for Occupational Injuries and Diseases Act, No. 130 of 1993.

Section 7(2) of the EEA prohibits such testing without Labour Court permission.

By implication, each and every employer, including the State, will need to apply to the Labour Court in order to get permission for this kind of testing. This is impractical, slow and very costly.

  1. Aids exceptionalism
  2. The exceptional treatment of HIV in terms of testing could further stigmatise HIV, and will certainly not help to combat the disease. The public policy treatment of HIV should be similar to the treatment of other comparable diseases. For this reason one could argue that HIV testing should be dealt with as any other testing for a medical condition. The impression that HIV is receiving special treatment may cause a backlash against those affected.

  3. Position of health care workers

    Health care workers are placed in an untenable situation. Duty of care requires testing for HIV where indicated. Testing for HIV by health care workers where they consider it professionally indicated should not be jeopardised by legislation to the detriment of the employee (the patient). It would be negligent of health care workers not to test in specific instances.
  4. Occupational transmission
  5. As stated by the South African Law Commission, although occupational transmission of the virus is highly unlikely, it is not impossible, especially in the medical field. Doctors or surgical technicians known to have HIV have been prohibited from performing exposure prone operations in other countries. Some countries also allow the exclusion of servicemen with HIV from active duty that may entail field transfers of blood from one serviceman to another.

  6. HIV testing required by law

Should HIV testing be required directly or by implication in terms of any law, this would not be possible without first approaching the Labour Court, because the Employment Equity Act enjoys precedence over any other law. In terms of the Compensation for Occupational Injuries and Diseases Act, for example, testing would be required in the case of accidental exposure to HIV in the workplace.

Intention of the legislator by including these sections in the EEA

  1. If the sections in question were included to prevent unfair discrimination against an employee, or an applicant for employment, on the basis of his/her HIV status in the workplace, section 7(1) would suffice. The latter section also adhered to the principle of non-AIDS exceptionalism.

    If section 7(1) suffices to deal with all other comparative serious life-threatening conditions, it should also suffice for HIV/AIDS.
  2. Had the intention of the legislator been to place all knowledge of HIV status outside the reach of the employer, irrespective of the (positive or negative) purpose for which the information is used, the unintended consequences of such an arrangement on workplace and health care services provided by employers should have been considered more carefully. The manner in which the Act is currently worded could certainly not have been the legislators intention, and needs to be corrected as soon as possible.

Very few employers will be willing to approach the Labour Court to allow for testing, due to cost considerations, and also the fact that this issue is politically very sensitive.

Recommendations

Preferred option:

Repeal section 7(2) but specify HIV in section 7(1):

7(1) Medical testing, including testing for HIV, is prohibited, unless

    1. legislation permits or requires the testing; or
    2. it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job.

Alternative option:

Replacement of section 7(2) of the Employment Equity Act:

7(2) Testing of an employee at the request of an employer to determine that employee’s HIV status is prohibited unless:

(a)(i) the employee gives informed consent to such testing,

    1. the employer treats the result of such testing as confidential, and
    2. the results are not used to unfairly discriminate, directly or indirectly, against the employee; or

(b) the Labour Court, in terms of section 50(4), determines such testing to be justifiable; or

    1. legislation permits or requires the testing; or
    2. the testing is done in terms of a collective agreement entered into between the employer and a representative trade union.

Amendment of section 1 of the Employment Equity Act:

  1. Definitions

‘Informed consent’ for purposes of section 7(2)(a)(i) means that the employee understands and agrees to an HIV test. Informed consent implies that the employee understands what the test is, why it is necessary and the benefits, risks, alternatives and possible social implications of the outcome