6.1) HIV Testing
6.1.1) No employer may require an employee, or an applicant for employment, to undertake an HIV test in order to ascertain that employee’s HIV status, unless authorisation has been obtained from the Labour Court. This includes HIV testing:
i) during an application for employment;
ii) as a condition of employment;
iii) during procedures related to termination of employment;
iv) as an eligibility requirement for training or staff development programmes; and
v) as an access requirement to obtain employee benefits.
6.1.2) Where HIV testing has been authorised by the Labour Court it should be carried out in terms of the conditions prescribed by the Court with regard to:
i) the provision of counselling;
ii) the maintenance of confidentiality;
iii) the period during which the authorisation for HIV testing applies;
iv) the category or categories of jobs or employees in respect of which the authorisation for HIV testing applies.
6.1.3) HIV testing, where permissible and where a court order has not specifically prescribed the conditions under which such testing may take place, should be carried out after obtaining voluntary, informed consent. It should further be accompanied by pre- and post-test counselling.
6.2) Confidentiality and Disclosure
6.2.1) All persons with HIV or AIDS have the legal right to privacy. An employee is therefore not legally required to disclose his or her HIV status to their employer or to other employees.
6.2.2) Where an employee chooses to voluntarily disclose his or her HIV status to the employer, this information may not be disclosed to others without the employee’s express consent.
6.2.3) Mechanisms should be created to encourage openness, acceptance and support for those employers and employees who voluntarily disclose their HIV status Within the workplace, including:
i) the use of persons openly living with HIV or AIDS in education, prevention and awareness programmes;
ii) encouraging the development of support groups for employees living with HIV or AIDS; and
iii) ensuring that persons who are open about their HIV or AIDS status are not unfairly discriminated against or stigmatised.