Workers infected with HIV/Aids – the law is on our side!
The Law is onour side!
By Kim Jurgensen
Recently there was a court case involving South African Airways (SAA) and one of their employees. SAA had tested the employee – without his consent – for HIV. The results came back positive. The man had previously applied for a job as a cabin attendant and had been found suitable for the position. However, because he was HIV positive SAA refused to give him the job. Supported by the Aids Law Project, he took the case to the Labour Court, and he won. SAA paid him R100 000 in damages.
This case was important for a number of reasons. Firstly, it was the first time a case dealing with pre-employment HIV testing had gone to the Labour Court. This is an important issue because it shows that people are no longer allowing themselves to be discriminated against. Despite the prejudice which still accompanies those who are ignorant of the disease, someone was prepared to stand up and fight for his rights.
It is also important because people are starting to use the law to protect them. The Constitution and the laws in our country protect people from being discriminated against because of their health status. This means that those who have HIV or Aids should have the same access to jobs as those who are not infected.
The reason for this is that HIV does not make a person incompetent. SAA admitted that, once they found out the employee was HIV positive, they made no effort to do follow-up examinations to assess his ability to comply with the operational requirements of the job.
In fact, not only had they made a decision to discriminate against this man, they had not even asked his permission to take the test. Nor was any counseling provided to prepare him for the result or to inform him of his rights. We want to stop this kind of abusive practice by employers!
What this case demonstrates to us is that there are still people out there who are ignorant of HIV and therefore base their decisions on illogical fears. We do not know how many workers are being tested without their consent. Certainly there are very few employers who provide counseling and support for those who are infected, or who are planning to get tested.
Moreover, how many employers discriminate against workers without giving them honest reasons? There may be workers who are being denied employment or promotion because their employers are aware they are HIV positive – yet these same employers may not give that as the reason.
This case highlights the need for much more work and training on HIV/Aids. We need to educate people about the disease so that they are not afraid, and they do not discriminate against those who are infected. Being infected does not mean you cannot do your job. Many people are able to live long healthy lives while they are infected with HIV. It also relates to our campaign for affordable drugs.
The drugs which have been developed allow people to strengthen their immune systems and live normal healthy lives. Unfortunately, very few workers can afford these drugs. We must actively support the campaign for affordable treatment.
We also need to ensure that all workers are educated on their rights. No employer can test you for HIV infection without your permission. It is against the law! If, of your own free will, you want to be tested there are organizations who can arrange pre- and post-test counseling so that you know what your options are and are educated about all aspects of the disease.
Most importantly though, if you are infected this does not mean you cannot continue working. As long as you are physically able to do your job you are allowed to continue. Of course, you will need to take precautions not to infect others, and there may be special cases of risk, but employers are not allowed to fire you because of your HIV status.
We should salute the worker who challenged SAA. Business should know they can no longer discriminate against people because of their health status. The law is on our side!
Testing time
A worker's experience
I went for an Aids test this morning. It was a spur of the moment decision but a good one in the long run. I had to go for a set of other blood tests, which I was told, would only involve a finger prick. But then they said they had to extract blood from my vein, so I figured why not add an HIV test at the same time.
Did I have reason to worry?
Well, a few months ago a condom slipped of in the middle of sex with an unfaithful lover. He told me afterwards he had seldom used condoms with the numerous women he had been having sex with over the past few months. I didn’t worry too much about it but there was a nagging fear in the back of my mind.
I now have a new lover and definitely don’t want to put him at any risk. Even though I have been very careful myself, I don’t want to take even the slightest chance of infecting him.
So I asked the sister to include an HIV test on the list of others they were doing.
Her only response was to ask if I’d signed a consent form. I had. This is not my first test. I had a test some years back and was so terrified while I waited the three days for the result that I vowed to completely change my lifestyle and be ultra-careful in the future. And I received no counselling before or after the test. Those days spent imagining what it would be like if they were positive were almost unbearable.
I am less worried now, not because I think the risk is any lower (it only takes once!) but because I am not as frightened to be one of the nearly four million people living with HIV. I thought I knew a lot about the disease and that this article would be filled with facts, but I am surprisingly ignorant.
I do know that HIV doesn’t kill you. I also know that there are medicines available to minimise the effects and strengthen your body to fight "opportunistic" diseases (such as TB, pneumonia, basically any serious illness that can infect your body and end up killing you). But they are really expensive. I doubt I will be able to afford a long-term course of the most effective drugs if I am infected. And this makes me more determined to support the campaign for affordable drugs.
I am also now aware of the importance of counselling when you take this test. I was lucky because I was in a room right next to a wonderful doctor who explained everything to me if I had questions. But what about the thousands of people who go to public hospitals where they don’t know the doctor and may not feel comfortable raising questions. It should be a standard procedure, not matter how much you know, that you are counselled when being tested.
And what about the after affects?
I’m not sure how my colleagues will react if I turn out to be HIV positive. They may ostracise me completely. Will people eat lunch with me, will those I haven’t seen in months hug me at the Congress, will someone still share a room with me at the staff meeting? I have no idea how well educated people are, or if they harbour prejudices based on their ignorance.
There is nothing I can do now except to wait. I lead a responsible life and minimise the risks to myself and others wherever I can. I can’t make any dramatic pledges about changing my lifestyle. But this experience has hardened my resolve to take up the challenge of changing our practices and perceptions of this disease.
I really believe there should be trained counsellors in every workplace whose job it is to educate people on issues surrounding HIV and Aids. We should feel comfortable talking about this and not worry what our comrades will think of us.
I will continue to support the campaign for affordable drugs, knowing that I myself could be one of the people who need those drugs. And I will continue to talk openly about HIV and Aids and what it means to individuals on a daily basis.
Do I regret being tested?
No. My status is the same (whatever that is; I still haven’t got the results) whether I know it or not. And I’m glad my partner can trust me to be open and honest. And if I’m positive, it will highlight the need for me to become informed about the disease and how best to manage it. It's not a death sentence!
© COSATU