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The issue:
"My boss wants me to take an HIV test. Can he force me to do this? And if I do have a test, is the result confidential?"
The answer:
Can I be forced to take an HIV test?
No! No employee, or applicant for employment, may be required by their employer to undergo an HIV test. HIV testing by or on behalf of an employer may only take place where the Labour Court has declared such testing to be justifiable in accordance with Section 7(2) of the Employment Equity Act.
If I do have a test, is the result confidential?
Yes! All persons with HIV or AIDS have a right to privacy, including privacy concerning their HIV or AIDS status. There is no legal duty on an employee to disclose their HIV status to their employer or to other employees.
Can my doctor or health worker tell my employer about my status?
No! A doctor or health care worker who tells an employer about an employee's HIV status without their consent is acting against the law. This is breaking the employee's right to confidentiality.
If I am found to be HIV positive, can I be dismissed?
No! An employee with HIV/AIDS may not be dismissed because he or she is HIV positive or has AIDS. (Section 187(1)(f) of the Labour Relations Act, No. 66 of 1995). However, where there are valid reasons related to their ability to continue working and fair procedures have been followed, their services may be terminated in accordance with Section 188(1)(a)(i).
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