Confusion over HIV/AIDS testing in the workplace

A South African AIDS lobby group this week said it was considering seeking a ruling from the country's Labour Court over the legality of workplace HIV/AIDS testing.

The Johannesburg-based AIDS Law Project (ALP) said it would seek clarity on the issue as "there was confusion within the legal fraternity whether workplace HIV testing required prior approval from the Labour Court".

Instead of clarifying matters for legal practitioners and their clients, a Labour Court judgment handed down earlier this year appears to have muddied the waters.

The court ruled that in terms of the Employment Equity Act, HIV testing in the workplace was prohibited unless the Labour Court deemed it to be justifiable.

But Fatima Hassan, an attorney at the ALP told PlusNews that it was still not clear what constituted "justifiability".

The prevailing interpretation of the court ruling was that "in order to conduct HIV workplace testing, companies need to prove to the Labour Court that there was sufficient reason," Jennifer Joni, also an attorney at the ALP said.

Voluntary anonymous testing is often used to determine the percentage of employees affected by the disease in a company. Often it is part of HIV/AIDS workplace programmes that at times precede the provision of antiretroviral medicines.

"The judgment has not drawn a distinction between voluntary and compulsory testing and therefore was not clear on what forms of company HIV testing programmes could be deemed to be justifiable. It would be considered a waste of time and money to apply for permission where there was consent between the parties concerned," Daniel du Plessis, an attorney with the labour law firm Michael Bagraim and Associates said.

However, some legal practitioners have expressed concern over the large number of companies who are not aware that they should seek prior approval from the Labour Court before embarking on any form of HIV testing at work.

Britta Rotmann an associate at the prominent law firm Webber Wenzel Bowens said: "While there are no penalties involved [in terms of the Employment Equity Act] all companies should seek permission before implementing HIV testing programmes."

The ensuing confusion has resulted in delays and uncertainty for several companies who want to introduce HIV prevalence surveys among their workforce but also wish to remain within the confines of the law.

Until there is a clear ruling on the matter, companies will have to rely solely on the decisions of their legal representatives.