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3.1 A number of distinct rationales are generally advanced to justify pre-employment testing and to legitimate workplace discrimination on the basis of HIV. Broadly, these rationales stem from concern over employers' rights; workplace transmission; impaired occupational capacity arising from HIV-related causes; the costs of including people with HIV in the workforce; problems of providing benefits for employees with HIV; and beneficent concern for applicants with HIV.[116] There are in addition broader concerns about the creation of disincentives for investment by over-regulating business, and the impact of AIDS-specific measures on public thinking about the epidemic.
3.2 As indicated in the introduction, individual comments on the rationales as set out in Discussion Paper 72 are included in this Chapter and Chapter 4. Understandably the emphasis placed in comments on the rationales differ according to the interests represented by the persons and bodies commenting. In general, comments on the rationales confirmed the opposing interests at stake in this debate, as well as the complexity and challenge facing the Commission in finding an equitable and workable solution. The rationales for pre-employment testing elicited the strongest response from commentators in that proponents supplied additional motivation while opponents submitted strong counter arguments.
3.3 Philosophically, many of the rationales for pre-employment testing derive from an emphasis on employer freedom of choice in deciding whom to hire. The legal basis of this right is located in the right to freedom of association and the freedom to contract. In a society which recognises these rights and freedoms, any inhibition - including inhibitions on whom an employer may hire - must be well justified.
3.3.1 The AHI submitted in its comments that an employer was entitled to hire the best candidate according to the job requirements. According to them, this could include taking economic factors into account when selecting employees. The AHI however emphasised that if pre-employment testing was required it should, as all other aspects of pre-employment assessment, be objectively justifiable in terms of the job requirements.
3.3.2 It may also be argued that a job applicant has the right to consent to furnishing information about his or her HIV status or to being tested. An individual's right to act as an autonomous being and thus decide which is the best course of action for him or herself in any given situation, is entrenched not only in the right to privacy but also in the rights to human dignity[117] and freedom and security of the person.[118] Moreover section 16 of the Constitution of the Republic of South Africa (Act 108 of 1996) (the 1996 Constitution) clearly gives everyone the right to freedom of expression which includes the freedom to impart information. From this perspective an individual is therefore entitled to make voluntary disclosures of private or personal information to a prospective employer or during the employment process.[119]
3.3.3 If the right to privacy extends to protect an individual from unwarranted interference in decision making regarding personal matters, as indicated below,[120] it could be argued that a prohibition on pre-employment HIV testing which does not also allow for voluntary submission to testing (or voluntary disclosure of HIV status) may amount to an infringement of such right.[121]
3.4 Although occupational transmission of the virus is unlikely, it is not impossible.[122] As has been rightly pointed out by the AHI, risks vary from occupation to occupation with certain occupations bearing far greater risks than others. The AHI however does not agree with calculating the risk of occupational transmission theoretically.[123] The AHI submits that the risk is job-related and that for people who are in fact susceptible to such transmission, the risk is 100%. An employer may therefore wish to test applicants for employment for HIV because it considers it has a responsibility to prevent occupational transmission of HIV and that there is a possibility (however remote) of HIV transmission in that particular workplace.[124]
3.4.1 The occupational safety justification for testing has led to health care workers with HIV being prevented from performing specified duties.[125] Doctors or surgical technicians known to have HIV have been prohibited from performing exposure prone operations.[126] In Doe v University of Maryland Medical System Corporation, an Appellate Federal Court in the United States considered whether even in the surgical setting, where there was at most a one in 42 000 chance of HIV transmission during the performance of an exposure prone procedure, preventing a doctor with HIV from performing those procedures was justified. The court found that such a possibility of transmission constituted a "significant" risk given the consequences of HIV transmission, and that the hospital was justified in attempting to contain that risk through the adoption of specific procedures which included barring the doctor with HIV from performing certain operations. Because the possibility of transmission constituted a significant risk, the court found that the doctor was not "otherwise qualified" to perform his surgical duties, and that - for the purposes of the Americans with Disabilities Act[127] - discrimination against the doctor was fair and justifiable.
3.4.2 The occupational transmission rationale has also been advanced as a justification for testing applicants for employment in the military and in emergency service organisations.[128] Military officials contend that in certain battlefield instances the exchange of blood (either in combat or as part of human blood banks) is likely, and thus ensuring that military servicemen do not have HIV has operational benefits for national security.[129]
3.4.3 The military, in Australia, is at present permitted to exclude servicemen with HIV from positions that - as an inherent job qualification - require field transfers of blood from one serviceman to another.[130]
3.4.4 In the United States, the military is allowed to test servicemen for HIV.[131] Until 1996 service members who tested HIV positive were not automatically discharged.[132] In February 1996, the United States Congress passed legislation authorising the discharge of all service members who test positive for HIV.[133] President Clinton however ordered the United States Department of Justice to refrain from defending the provision from legal challenge.[134] In April 1996, the controversial legislation was repealed.[135]
3.4.5 In certain instances, emergency service organisations - such as police and fire departments - have attempted to test applicants for HIV.[136] In one case, Anonymous Firemen v City of Willoughby, a Federal District Court judge in the United States found that the possibility of HIV transmission during the provision of emergency care, could justify the exclusion of applicants for employment with HIV. Despite evidence that transmission could not occur through casual contact,[137] and that mandatory HIV testing "implicated job applicants' right to privacy", the court accepted that the City could take reasonable precautions (i e testing) to prevent such a transmission.[138]
3.5 It is suggested that people with HIV, while not yet symptomatic, may experience neuropsychological symptoms. Employers fear that such symptoms may, even in the asymptomatic phase, impair performance and thus place co-workers or customers at risk of injury. Some employers suggest that the only way to prevent sudden onset of AIDS dementia is to test all applicants for employment for HIV. This argument for testing draws upon evidence that HIV may reside in the central nervous system of even asymptomatic persons. The aircraft pilot[139] and the mines lift operator are two occupations where it has been argued that a sudden onset of AIDS dementia could be dangerous to a large number of people. Given the drastic harm that could result from an accident in these occupations, it is argued that curtailment of the rights of all applicants is warranted. In the United States, concern over AIDS dementia and HIV-related neurological deficiencies has led to the disqualification (i e grounding) of pilots who are on anti-viral medication or who already have clinically defined AIDS (as opposed to HIV infection).[140] It has also been argued that doctors whose judgment is impaired by AIDS dementia may put patients at risk.[141]
3.5.1 The contention that possible pre-symptomatic presentation of HIV-related neurological impairment may warrant HIV testing is most frequently raised in the case of airline pilots. One source has stated that "AIDS can impair eye muscle coordination and other vital flight skills even before infected airline crew members show overt symptoms of the incurable, fatal disease" and that 25% of people with HIV were affected by neuropsychological symptoms before any other symptom.[142]
3.5.2 It has been established not only that HIV does reside in the central nervous system, but that AIDS dementia may sometimes be the first manifestation of clinically defined AIDS.[143] There is no consensus on whether the possibility that AIDS dementia might occur in asymptomatic individuals can be ruled out, and how dangerous such an onset of dementia might be.
3.5.3 The AHI considers that in view of conflicting studies on AIDS dementia, there is as yet not sufficient evidence to show that sudden bouts of AIDS dementia will not occur in asymptomatic persons with HIV.
3.6 It is widely accepted that, once an employee becomes ill with AIDS, application of the usual rules with regard to incapacity will generally permit appropriate job re-assignment and eventually termination. If an employee is so sick that he or she cannot return to work, the employment contract may be terminated because of the employee's incapacity. Employers however may wish to confine their direct costs by limiting the number of people they employ who can be ascertained to have HIV and who may pose an increased risk of work disability.[144]
3.6.1 It is argued that pre-employment testing can reduce employment costs by identifying people with HIV, and removing them from the recruitment pool, since they are likely at some point to get sick. Costs incurred in training and recruiting employees, or incurred as a result of lost efficiency, are the focus of this consideration.[145] In a labour-intensive business the infection rate (and death rate) can be as high as 25% of the work force. During the last year of illness an employee can be absent for up to 50% of the time. On this basis the AHI in its comments pointed out that as South Africa has been accepted as a fully fledged member of the international community, it is now required to compete on the international market. Lowered productivity will negatively impact on our ability to compete with others. The AHI also submitted that certain forms of training were exceptionally expensive (for example the training of airline pilots) and that in such circumstances employees were expected to remain with their employers for extensive periods of time.[146]
3.6.2 The economic argument for testing has been extended by reference to new and more sensitive tests, for instance viral load testing, that may be able to forecast more accurately the future health status of prospective employees.[147] The argument is that it is justifiable to use knowledge about eventual unwellness in order to assist in making hiring decisions.
3.6.2.1 Dr Clive Evian and SACOB argue in their comments on Discussion Paper 72 that the issue for employers is not so much whether an individual is HIV positive or not but rather how advanced his or her HIV condition is. They state that this can now objectively be determined through clinical examination, CD4 cell count and HIV viral load testing. According to Dr Evian, an employer "should have the right to reject employees who have objective evidence of very advanced disease". Despite this, SACOB is not in favour of general pre-employment HIV testing. The Chamber contends that HIV testing should be done only when at any pre-employment medical examination an applicant presents with clinical indications of AIDS. In this instance it is unlikely that the employee would be able to fulfill his or her employment contract and therefore the employer should be able to refuse such an applicant employment.[148] Dr Jim Murphy, Group Medical Officer of Barlow Limited, submitted that the Commission should take into account that an employer may expect an employee to be healthy and productive for a minium period of time (for instance three to five years). As the CD4 cell count (in contradistinction to an HIV antibody test) may give some indication in this regard, it should be clarified whether the CD4 cell count would be permitted as part of a pre-employment medical examination.[149]
3.6.2.2 The Provincial Administration, Western Cape Department of Health commented that it should be deemed fair and justifiable for an employer to refuse an individual employment on the ground of that person's deteriorated HIV status.
3.6.2.3 Contrary to the argument that persons with HIV may continue to be productive members of society for many years after acquiring HIV, Professor Alan Whiteside and the Chamber of Mines of South Africa submitted in their comments that in Africa there is evidence to suggest that the median time between infection and death is five to six years. This considerably increases the cost burden for employers.[150] The Actuarial Society of South Africa is strongly of the opinion that it is not correct to claim that the life expectancy of South Africans infected with HIV will be similar to that of infected persons in Western Europe or the United States. The Society estimates that the average life expectancy will be of the order of 10 years as opposed to 15 years typically experienced in Europe and the United States. (The Society anticipates however that life expectancy in South Africa will tend to be greater than is the case for the rest of Sub-Saharan Africa which is normally quoted as about eight years.[151])
3.6.2.4 The Chamber of Mines of South Africa in its comments draws attention to the particular link between HIV and tuberculosis which is of very real consequence to the mining industry (the single largest industry employer of labour in the country). Exposure to silica dust is one of the factors that increases the risk of contracting tuberculosis. The mining industry therefore constitutes an environment where a high risk of tuberculosis infection is present. The Chamber submits that a prohibition on pre-employment HIV testing overlooks the fact that employers may run the risk of incurring increased liability for their failure to protect employees and prospective employees with HIV from exposure to tuberculosis in the mining sector. Moreover, the principle of no pre-employment HIV testing ignores the provisions of the Mine Health and Safety Act, 1996 (Act 29 of 1996) which place a duty on employers to maintain a healthy and safe work environment. It is thus submitted by the Chamber that the testing of employees to determine their suitability for employment in occupations with a high risk of contracting tuberculosis should not be deemed to be unfair discrimination.[152]
3.7 Pre-employment testing may also derive from concern to protect employee benefit programmes from financial risk or insolvency.[153] These include health and medical schemes, pension and provident funds, retirement and annuity funds, and group life coverage. HIV and AIDS will have different impacts on all of these funds. It is argued that benefit schemes cannot continue to function properly if people with HIV are given coverage whether limited or unlimited. In conjunction with this argument, proponents of testing suggest that employees without HIV have a right to exclude those with HIV from their benefit coverage, or limit their coverage of HIV-related costs.[154] Several respondents from the business sector submitted in their comments on Discussion Paper 72 that if HIV is to be treated as any other life threatening disease then mechanisms should be available to enable benefit funds to assess the potential risk of new members.[155]
3.8 Pre-employment testing may be considered to have value because it may be in the best interests of applicants for employment to establish their HIV status, in order to ensure that workplace accommodations can be made.[156] This argument is based on the interest that individuals may have in finding out their HIV status to enable them to avoid or take precautions against opportunistic infections. Instances include health care workers and others whose work has a tendency to include exposure to untreated tuberculosis.
3.8.1 Another suggested instance is airline flight crew, who in the course of performing their job functions are required to travel to locations for which prophylactic inoculation with live vaccines - which might not be clinically recommended for people with suppressed immune systems - is necessary.[157]
3.8.2 In the United States, members of the foreign service (and other government employees[158]) who are subject to long term deployment in countries without appropriate medical care are tested for HIV. In a court action by the union of federal employees contesting the United States State Department's policy not to post employees with HIV to countries without appropriate medical care, the policy was upheld because the court found that the testing could be in the best interest of the union members.[159]
3.9 It is further suggested that testing applicants for employment may have a social benefit in that persons who learn that they have HIV will be able to make appropriate life decisions, such as changing their diet, or taking precautions to protect sexual partners. It is argued that testing will counteract the cloak of silence that surrounds HIV and AIDS.
3.9.1 Dr JH Olivier, the City Council of Pretoria Medical Officer of Health submitted in comments that by ascertaining the health status of a worker, everyone - including the employee - benefits. If employers are willing to budget for the cost of testing, it takes a burden off the Government and other benefit providers. He concluded that testing can prove to be most valuable as the results can be utilised to determine the real onslaught of HIV and anticipate the effects on the economy and society.
3.10 While some employers may recognise that there is generally no risk of HIV transmission in the workplace, they may still want to exclude employees with HIV so as to forestall possible workplace disruptions resulting from co-worker reaction to HIV and to ensure that clientele do not abandon business because of irrational fears of getting HIV. This argument has often been raised in service industries such as restaurants and hotels, where employers may recognise that there is no risk of HIV transmission but may still want to remove the fears of clientele.
3.10.1 The AHI in addition pointed out in their comments that once people develop AIDS this could have a negative impact on the atmosphere in the workplace in the sense that co-workers may feel resentful about having to take on an additional workload because of their colleagues' incapacity. According to them, co-workers and clients will further have to deal with the social implications of witnessing deteriorating health and eventual death.
3.11 It is argued that legislation may be part of a trend of over-regulation that will inhibit economic growth. Over-regulation may detract from national economic development by discouraging investment in people and job creation. If employers are forced to hire certain groups of people, the cost of labour may be driven up. If the cost of labour is too high, capital will leave South Africa for other unregulated, or less regulated, markets. Even marginal increases in labour or investment costs, or even the perception that such costs may arise, may make investment here less attractive and thus operate as a disincentive to it. Over-regulation may also lead to greater mechanisation, the employment of fewer people, or even the employment of people on a part time basis, offering fewer or no employment related benefits.
3.11.1 This rationale was supported by the comments of the AHI.
3.12 Finally, it is argued that AIDS-specific legislation may have no public health benefit because its exceptional treatment of the condition could further stigmatise HIV.[160] The public health response to HIV should be similar to the response to other comparable diseases. The impression that HIV is receiving special treatment may create a backlash against those affected. These arguments were strongly supported by several commentators.[161]
[116] BSA 1997 Response to SALC Presentation 2, 4.
[117] The Constitution of the Republic of South Africa (Act 108 of 1996) sec 10.
[118] Ibid sec 12(2).
[119] Under circumstances of labour surplus (the supply of work seekers exceeding demand, resulting in unemployment) almost every job advertisement attracts numerous applicants. These applicants are aware that they are competing for the particular job. They also know that their relative healthiness could be as important as their relative qualifications in getting them the job. Good health, therefore, is a competitive advantage and may be used by the applicant.
[120] See par 4.3. See also the decision in Bernstein v Bester 1996 4 BCLR 449 referred to in par 5.11.4 below.
[121] Cf however, Neethling et al at 38 who is of the opinion that a infringement of the free exercise of will or autonomy does not involve an infringement of privacy since there is no acquaintance with private facts contrary to the will of and determination of the person in question. Moreover, it would appear that in such cases there is no question whatsoever of personality infringement. The free exercise of a person's will or his autonomy is related to the freedom of human self-determination within the limits imposed by the law. As such it falls under the concept of legal subjectivity (that is, someone's status in the law as a person and his capacity to possess rights and duties). If the right to privacy includes making an autonomous decision and not being interfered with, the right to autonomous decision making exists both as a personality right in terms of the common law and as a right enshrined in the Bill of Rights. It would thus receive stronger protection in that the legislature may not pass any law or take any action which infringes or unreasonably limits such right. Thus in addition to the normal delictual remedies available in the case of the infringement of a personality right, such rights receive constitutional guarantees and protection (op cit 82-83).
[122] See fn 58 above for authority that HIV transmission in the ordinary workplace is a theoretical possibility but highly unlikely. See also Mason 1986 Public Health Reports 6; CDC Morbidity and Mortality Weekly Report 20 May 1994 347; AIDS Weekly 9 November 1992 24. Outside the health care profession, there have been no reported cases of occupational transmission of HIV.
[123] Cf par 4.7.1 below.
[124] 15 October 1996 Hansard 2437. In response to a question from Mrs NA Sisulu, The Minister of Safety and Security discusses his responsibility to protect the public from the possibility of transmission of HIV by a policeman in the work environment.
[125] In the United States, the Americans with Disabilities Act (42 USC §§ 12101-12117 [Supp V 1993]) generally discourages pre-employment testing, but will permit testing in certain instances where a direct threat of injury or occupational transmission is created by the applicant's present health status. See, for example, the Equal Employment Opportunity Commission's regulations requiring an employer to focus on the applicant's present ability to safely perform essential job functions (29 CFR § 1630 [1994]).
[126] Doe v University of Maryland Medical System Corporation 50 F 3d 1261 (1995); Leckelt v Board of Commissioners 909 F 2d 820 (1990)I; Bradley v University of Texas MD Anderson Cancer Center 3 F 3d 922 (1993), cert denied, 114 S Ct 1071 (1994).
[127] See fn 235 and par 5.17-5.17.3 below.
[128] 9 October 1996 Hansard 2381.
[129] Ibid.
[130] Commonwealth of Australia v The Human Rights and Equal Opportunity Commission and 'X' No Qg 115 of 1995, 1996 Aust Fed (ct Lexis 859). However, see also par 5.23 below.
[131] Gunderson et al 193 fn 3.
[132] They were, however, often prevented from holding certain positions, including overseas assignments and service on board ships. Plowman v United States Department of The Army 698 F Supp 627 (1988); Gunderson et al 198. On government testing of applicants for employment in general, see 22 CFR 11.1(e)-(5).
[133] Cf Orthmann Law and Policy Reporter April 1996 55. See 10 USCS 1177 (1996); Public Law 104-106, Div A, Title V, Subtitle F, @ 567(a)(1).
[134] See Orthmann Law and Policy Reporter April 1996 55.
[135] 10 USCS @ 1177 (1966) was repealed by Public Law 104-134, Title 22, Chapter 7, @ 2707 (a)(1), 110 Stat 1321-330 April 26 1996.
[136] Doe v City of Chicago 883 F Supp 1126 (1994); Anonymous Firemen v City of Willoughby 779 F Supp 402 (1991); Doe v District of Columbia 796 F Supp 559 (1992).
[137] Cf the recent case of transmission of HIV in the absence of known risk exposure for HIV as reported in the Centers for Disease Control Morbidity and Mortality Weekly Report of 11 July 1997 at 620-623: In February 1996 transmission of HIV by an unknown route involving an HIV-infected man and his previously uninfected female sex partner was reported to the CDC. The epidemiological investigation of this transmission suggested that the woman was infected through mucous membrane exposure to the man's saliva that was contaminated by blood from his bleeding gums or exudate from undetected oral lesions. (Such exposure may have occurred during deep kissing and the woman's inflamed gingival mucosa, as indicated by her dental records, might have been a contributing factor.) The report noted that exposure to saliva uncontaminated with blood is considered to be a rare mode of HIV transmission.
[138] Anonymous Firemen v City of Willoughby 779 F Supp 402 (1991).
[139] Harding et al 4.
[140] McCormack 1995/1996 The Journal of Air Law and Commerce 292.
[141] Fleming (Unpublished) 4-5.
[142] Wyld and Cappel 1991 Labor Law Journal 206; see also Harding et al 143-144.
[143] McCormack 1995/1996 The Journal of Air Law and Commerce 305: "Not until AIDS presents itself in one of several AIDS-characteristic diseases (including impaired cognitive skills) is the pilot's ability to perform her duties likely to be jeopardized".
BSA 1997 Response to SALC Presentation 1.
[145] Solomon 1996 AIDSScan 5.
[146] See par 4.10.5 and 4.10.8 for counter arguments.
[147] BSA 1997 Response to SALC Presentation 1. For a more complete discussion of the arguments for pre-employment testing, see Finnemore 1990 IPM Journal 35-40; Mello 83-85, 90-91. For more detail on viral load testing see fn 41 above.
[148] See also par 7.28 below.
[149] Cf the arguments in par 4.10.2-4.10.5 below.
[150] Cf par 4.10 et seq below for contrary points of view.
[151] It is however, significant to note that in contrast to the detailed data available on disease progression from industrialized countries, the figures normally quoted for Africa are based on scanty data and are limited to sub-Saharan Africa. Data are available from six studies only - four of which suggest that in Africa, progression rates to AIDS are similar to rates in industrialized countries. Only two of the studies suggest a more rapid progression. In one of these researchers found that the rapid progression of disease may be related to unknown lifestyle factors and frequent re-exposure to HIV of the study group (women sex workers). It was further found that lack of medical care may affect both the duration of the incubation period as well as the symptomatic survival period: If most deaths occur after clinical AIDS has developed, rapid disease progression must be occurring - but it seemed more likely that what was happening in Africa was premature death from extraneous high-grade infections at a pre-AIDS stage. It was concluded that additional studies are needed in order to accurately document rates of disease progression in developing countries (Mulder AIDS in the World II 15-16).
[152] Cf par 4.10.10 below for counter arguments.
[153] For a discussion, see Cameron and Adair (Unpublished) 5.
[154] BSA 1997 Response to SALC Presentation 7, noting the wide variety of parties that have an interest in employee benefits.
[155] Comments of eg the AHI, the City of Durban Pension Fund, and the Town Secretary, Transitional Local Council of Krugersdorp. Cf also the comments of the City Council of Pretoria Personnel Services Department who implied that a distinction should be drawn between testing for access to employment and access to employee benefits.
[156] BSA 1997 Response to SALC Presentation 2, noting the susceptibility of individuals with HIV to TB bacillus.
[157] Cf also par 3.6.4 above.
[158] See 22 CFR 11.1(e) for examples of employees subject to HIV testing. These include people who are employed in the Peace Corp, and deployed to countries without appropriate medical care.
[159] Local 1812 v United States Dept of State 662 F Supp 50 (1987).
[160] BSA 1997 Response to SALC Presentation 6.
[161] Comments of SACOB, Dr Clive Evian, the AHI, the Judges of the Northern Cape Division of the High Court of South Africa, the Actuarial Society of South Africa, the Life Offices' Association (LOA), Prof Alan Whiteside, Dr T Patyicki, Dr Aart Hendriks of the University of Amsterdam and Dr JH Olivier, City Council of Pretoria Medical Officer of Health. The City of Durban Medical Officer of Health also indirectly supported these arguments. Comments regarding AIDS exceptionalism are extensively dealt with in par 7.19 -7.27 below.
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