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4.1 It is argued that testing applicants for employment facilitates unfair discrimination and infringes upon their right to privacy. Broadly, it is further argued that if HIV testing infringes upon the rights of applicants for employment, there must be a reasonable justification for the infringement. The further point is made that HIV testing frequently occurs in employment areas where there is virtually no possibility of transmission, and where HIV poses no danger to co-workers or the general public. Pre-employment testing in these instances may be futile, unfair, unproductive and misleading.[162] It is also argued that non-voluntary HIV testing may furthermore inhibit prevention efforts by continuing to stigmatise HIV and AIDS and by facilitating discrimination against people with HIV.[163] Furthermore, there is no responsibility to employ those who from unwellness are incapacitated from doing their jobs: the employment contract may be terminated, after compliance with legislative prescriptions, in the case of those too ill to fulfill their job requirements.
4.2 As indicated in Chapter 3, comments received on the rationales are also included in this Chapter. With regard to the rationales against pre-employment HIV testing commentators did not respond as extensively as in the case of the rationales in favour of testing. In this instance comments mainly consisted of confirmation and endorsement of the arguments presented.
4.3 Requiring an applicant for employment to undergo an HIV test, as a general condition of employment, may infringe his or her right to physical integrity (i e through the drawing of blood) and his or her right to privacy (i e through testing the blood sample for HIV).[164] The right to bodily integrity may protect a person's right of ultimate decision whether or not to subject him- or herself to an unwarranted medical intervention.[165] The right to privacy can protect a person from unwarranted intrusions into his or her home and body. The right to privacy does not merely protect against these physical intrusions. It also can extend to protect an individual from unwarranted disclosures of personal information,[166] and may even extend to unwarranted interference in decision making regarding personal matters.[167]
4.3.1 The Appellate Division of the Supreme Court (renamed the Supreme Court of Appeal under the 1996 Constitution) found that the unwarranted disclosure of a person's HIV status is an infringement upon that individual's privacy rights.[168]
4.3.2 While in some instances the application for employment may legitimate enquiries into otherwise personal information, the extent of the justification of the enquiry must depend upon job related considerations. It can not be argued that an application for employment in itself constitutes an unreserved waiver of the rights of the applicant for employment.
4.4 Testing may facilitate unfair discrimination against applicants with HIV. A decision to test is often based upon stereotype and irrational fear.[169] An employer will generally test an applicant for HIV only in order to differentiate between those applicants with HIV and those who are seronegative. The mere HIV status of an employee will generally not have any effect on his or her ability to perform essential job functions. Taking into account the HIV status of an applicant for employment may constitute unfair discrimination against that applicant.
4.5 The question - in regard to both infringement upon an applicant's right to privacy and bodily integrity and an applicant's right to equality - is whether there is adequate justification for the infringement.
4.6 To require a test as a precondition for employment may amount to the imposition of a mandatory requirement which bears upon the voluntary nature of the consent to the invasion of bodily integrity and of privacy. An applicant for employment who needs the job to provide him- or herself and dependants with food and shelter, and who is required as a precondition of employment to undergo HIV testing may not consent voluntarily to the test in any real sense of the word.[170] This consideration counters the argument that applicants for employment are merely exercising a personality or constitutional right encompassing the right to impart information when an employer requires that they volunteer their HIV status.
4.6.1 The AIDS Legal Network (ALN) expressed the opinion that pre-employment HIV testing does not infringe on employers' right to hire, their freedom of association or their freedom to contract since traditionally these rights have always been limited by a person's qualifications, performance and suitability for a job. The ALN submitted that health has been a consideration, but only in so far as it impacts upon immediate ability to perform the essential job functions. This view was supported by the Democratic Nursing Association of South Africa in their comment.
4.7 In most job occupations there is no danger of occupational transmission of HIV or of opportunistic infections associated with AIDS.[171] Even in health care, where blood-prone procedures may be involved, retrospective studies involving health care workers with HIV have shown a minimal risk of HIV transmission to patients.[172]
4.7.1 In a surgical procedure where a doctor with HIV manipulates a needle or knife within a body cavity, there is at most a one in 42 000 chance of HIV transmission.[173] The risk in occupations that involve less blood and bodily fluids, such as the police or fire force, is even more negligible.[174] In Doe v District of Columbia the United States Federal District Court recognised that the decision to exclude firemen with HIV - on the basis of a hypothetical risk that HIV transmission could occur - was irrational and unfair.[175]
4.7.2 The Australian Federal Court recognised that even in the military context, requiring an employee to "bleed safely" in the case of an occupational accident was a ludicrous job qualification.[176] While a theoretical risk of HIV transmission exists in all situations where two people might, as the court states, "trip on a stair, fall and suffer injury which bleeds" in such manner that transmits HIV to a fellow worker, a theoretical possibility of that kind was held not to justify discriminating against people with HIV.[177] This approach was supported by the Democratic Nursing Association of South Africa who felt that the military should be encouraged to practice universal precautions even in times of military conflict.
4.7.3 Even where (or if) HIV could create a danger in the workplace, testing applicants for employment for HIV cannot guarantee an HIV-free workforce. An employer cannot "screen" out HIV from the workplace any better than it can require existing employees to abstain from sexual intercourse or other activities that may transmit HIV. Testing is therefore an expensive and inefficient method of attempting to reduce the number of people in the workforce with HIV.
4.7.4 It is acknowledged internationally that the most effective means for employers to protect against transmission of HIV in the workplace is to implement universal infection control measures.[178] The AHI supported this argument. Implementing these measures is most obviously necessary in the health care field where universal precautions are in any event needed to prevent transmission of infections between patients and/or health care workers.[179]
4.8 According to present knowledge, there appears to be little basis for fearing that asymptomatic persons with HIV may be subject to sudden bouts of AIDS dementia that could put co-workers or customers at risk. As early as 1988, the WHO's Statement on Neuropsychological Aspects of HIV Infection found:
Governments, employers, and the public can be assured that based on the weight of available scientific evidence, otherwise healthy HIV-infected individuals are no more likely to be functionally impaired than uninfected persons. Thus, HIV testing would not be a useful strategy to identify functional impairment in otherwise healthy persons.[180]
4.9 Since this statement, a number of studies on AIDS dementia in asymptomatic seropositive individuals has been performed. On balance, the evidence suggests that AIDS dementia is unlikely to occur in asymptomatic people with HIV.
4.9.1 The WHO's Neuropsychiatric AIDS Study, Cross Sectional Phase II (1994) concluded that risk of subtle cognitive deficits may exist in asymptomatic stages, but that these changes do not seem to affect daily living activities. [181]
4.9.2 Recent studies suggest that, in spite of the presence of HIV in the central nervous system, people with HIV will remain neurologically intact during the incubation period.[182] Longitudinal studies reported to date "have failed to find any difference in neuropsychological performance between people with asymptomatic HIV infection and seronegative controls", and have established that while neuropsychological performance differentials existed between those with asymptomatic and symptomatic HIV, no such differentials existed between HIV seronegative and asymptomatic HIV seropositive individuals.[183]
4.9.3 One study testing the value of using neuropsychological impairment as an indicator of early illness (morbidity) acknowledged that asymptomatic HIV-positive subjects had a "poorer immune profile and poorer neurologic symptom rating" than HIV-negative subjects, but found nevertheless that the groups "did not differ significantly on any other parameter, including ... motor or cognitive function or mean score on the global measure of neuropsychological performance".[184]
4.9.4 A Canadian report found no evidence supporting the allegation that asymptomatic individuals with HIV could suffer from cognitive deficiencies and concluded that there is no justification for HIV testing to detect function impairment in asymptomatic persons in the interest of public safety.[185]
4.9.5 A study of 748 people with HIV found only one case of transient neurological deficit where the patient did not simultaneously demonstrate a severely compromised immune system.[186]
4.9.6 In a recent and comprehensive treatment directory on HIV/AIDS, the position is summarised thus:
Opportunistic infections occur in one third of the central nervous systems (CNS) of people with AIDS. While it is clear that the CNS may be exposed to HIV early in the course of infection, this does not characteristically result in clinically evident neurological dysfunction until much later. Thus, studies of asymptomatic seropositives have shown that the cerebrospinal fluids may have abnormally high levels of white blood cells, protein, locally produced antibody, and detectable virus, yet the study subjects remained clinically normal even when evaluated using careful quantitative neuropsychological testing. Additionally, prospective studies ... have shown that systemically asymptomatic subjects remain neurologically intact.[187] (Emphasis added.)
4.9.7 If it is effectively demonstrated that people with HIV experience, while still asymptomatic, HIV-related neurological impairment, it may be fair and justifiable for certain employers to limit the access of people with HIV to specific professions.
4.9.8 However, currently, the best way to prevent workplace accidents arising from neurological impairment is to test for the dysfunction itself. HIV itself is not a reliable indicator of neurological impairment. Proponents of workplace safety have argued for psychometric or other practical (rather than biological) tests to determine neurological functioning. A Canadian report has concluded that -
(T)here exist practical rather than biological tests for neurological and spacial functioning which are non-discriminatory because they do not locate the cause of the impairment but concentrate on its effect in relation to job performance.[188]
4.10 As stated earlier, the epidemic will have an overall effect on the economy, and employers will unavoidably be faced with higher labour costs.[189] The brunt of the illness will be borne by the economically active population. [190] However, workers with HIV may continue to be productive members of society for many years after acquiring HIV (thus paying for their own medical aid, contributing to the tax base, and taking care of their families and dependants).[191] Employing otherwise healthy persons with HIV for as long as possible thus makes sound economic sense. The City of Cape Town Health Department and the Breede River District Council AIDS Action Committee pointed out that since the advent of new combination therapies a large percentage of patients on these therapies would be able to continue to work for longer periods of time and possibly indefinitely. Legally an employer is not required to retain employees who, from illness, are no longer able to perform their essential job functions.[192] Neither the state, nor individuals, nor employers are expected to bear the costs of HIV on their own. If an employer seeks to limit the transmission of HIV, and the costs that HIV will impose on society, the most rational and efficient expenditure of time and money is on education and other prevention strategies, rather than mandatory testing.[193]
4.10.1 Expenditures for testing applicants may waste resources because tests can determine only whether a person is seropositive for HIV antibodies at the time the test is taken. Testing applicants for employment may waste resources on people who may not (for reasons unrelated to HIV) come into the workforce. It is argued that the most effective way to reduce HIV related recruitment and training costs is to educate existing employees about HIV and AIDS, and to encourage existing employees to engage in prevention campaigns. In occupations where there are high costs to specialised training, employers may find it more cost-effective to provide medical support to such employees as may have HIV. Medication, and other interventions including lifestyle adaptation, may extend the length of time employees with HIV can work.
4.10.2 The HIV status of an applicant for employment does not generally indicate how long that individual will be capable of working. As Arendse states:
Applicants who are deemed medically fit at the time of the interview should not be deprived of work because of the possibility of AIDS: medical fitness should be determined through the normal process of consideration and the normal rules concerning sickness should operate.[194]
4.10.3 Even as testing becomes more sophisticated - and viral load tests may begin to estimate how long an employee will be able to perform job functions[195] - the entire cost of the illness will not have to be borne by the employer. No employer is obliged to employ a sick workforce. When incapacity supervenes (that is, when an employee is no longer capable of performing a job function), the employment contract may, after observance of legal prescriptions, be terminated.[196] Conversely, otherwise healthy employees should be permitted to work.[197]
4.10.4 As scientific and genetic tests become more sensitive, doctors will be able to calculate risks for cancer, diabetes and heart disease. Ultimately, it might be possible on the basis of these predictive tests to seek to justify the exclusion of broad segments of the labour market from employment. There are however legal, ethical and social problems in denying employment based upon one of the myriad factors which may result in shortened life expectancy.[198]
4.10.5 It is true that employing applicants who can be ascertained to have HIV entails the prospect that supervening illness will eventually impose on the employer a loss of productivity, and, if training has been furnished, a loss of investment. But an employee is in any event not bonded to his or her employer for life. An investment in training can for this reason never be considered wholly secure. A trained employee may leave for many reasons, or suffer illness or disease from causes other than HIV.[199] The South African Nursing Association supported this argument by emphasising that anyone can get sick at any time and have differing levels of ability. In addition any woman can become pregnant and thus be absent from the workplace for a period of time.[200]
4.10.6 What is more, an employee may test negative for HIV, but become infected at any stage after employment or training. This fact is a particularly acute consideration as the epidemic sweeps through the country's workforce. It renders some HIV-related costs inevitable. Insistence on HIV testing at recruitment or before training is therefore more difficult to justify than if pre-employment testing could guarantee an HIV-free workforce.
4.10.7 Because pre-employment testing can never, on its own, guarantee an HIV-free workplace, pre-employment testing can strictly be logical only if the existing workforce is regularly retested, and the employment of those ascertained to have HIV (including those still capable of performing their job requirements) terminated. The latter expedient is plainly impermissible under existing labour regulation.
4.10.8 Even if pre-employment testing cannot eliminate people with HIV from the workplace, it could be argued that it could at least reduce some of the costs of recruitment and training which the individual employer may have to bear. In addition, it may be argued that pre-employment testing might reduce the number of people in the workplace with HIV. However, the costs of including people with HIV in employment are not unfamiliar: they are comparable to the costs of engaging in fair labour practices. These are costs associated, not only with HIV or AIDS, but with the prohibition on unfair discrimination and a commitment to equality and dignity for all South Africans. It must be borne in mind, furthermore, that excluding persons from employment on the ground of HIV imposes costs upon the state (and through the state, upon taxpayers), not only through the loss of their productive contributions, but through the burden of having to take care of individuals who have less access to employment in general, and who have been prematurely excluded from specific employment positions. The City Council of Pretoria Medical Officer of Health endorsed these considerations. Employers will eventually, in all likelihood, be affected by these costs.
4.10.9 There may be costs of preventing workplace transmission of HIV. These include the costs of applying universal precautions. However these costs cannot be eliminated by testing applicants for employment for HIV. If an employer was determined to maintain an HIV-free work environment, he or she would be required to test and re-test repeatedly. Even this would not eliminate the need for using generalised universal precautions so as to prevent the occupational transmission of other infections and of as yet undetected HIV.
4.10.10 As regards the particular link between HIV and tuberculosis, the ALN countered the argument of the Chamber of Mines of South Africa 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.[201] The ALN submits that under the Occupational Health and Safety Act (Act 85 of 1993) and the Mine Health and Safety Act, 1996 employers are legally required to create a safe working environment. The possible risk of an industrial accident, or high prevalence of tuberculosis (for example in the mining sector) could not therefore be considered "employment conditions" that may justify testing. Every employer must ensure workplace safety as far as practicable and not seek "to weed out" potentially ill people or make bleeding safely in the event of an accident a condition of employment.
4.11 An employer or other benefit-provider can, without unfair discrimination, restructure benefit plans to prevent jeopardy to them or their collapse, without excluding all people with HIV and without overburdening employees without HIV. HIV can and should be treated like other comparable life-threatening conditions.[202] Several commentators, including those from the business sector (the AHI, Life Offices' Association (LOA) and the Chamber of Mines of South Africa) and Prof Alan Whiteside supported this contention.
4.11.1 Once a person is taken into employment, it is possible to structure all benefit plans to contain costs without offering unlimited coverage to anyone. The LOA supported providing persons with HIV with some alternative form of benefits where their access to the normal employee benefits would be problematic.
4.11.2 Benefit plans can furthermore distinguish between occupational and non-occupational injuries - providing coverage for illnesses that result from workplace accidents, but limiting coverage for unrelated sickness. This can ensure that otherwise healthy employees with HIV are able to retain coverage for occupational accidents, but that all employees share equally the burden of injury and illnesses that are not work-related.
4.11.3 The City Council of Pretoria Medical Officer of Health observed that it is not possible to offer differential benefits without testing for HIV or the disclosure of HIV status.
4.11.4 The Gauteng Department of Welfare and Population Development added that excluding persons with HIV from employee benefit schemes will place an additional burden on the Government's social security plans.
4.12 Non-arbitrary approaches to all illnesses are indeed likely to entail less coverage for other diseases than before HIV. But this may be the inevitable consequence of a national commitment against unfair discrimination on any irrational ground. As stated earlier, non-discrimination will necessarily entail some costs.
4.13 The Ontario Court of Appeals in Ontario Human Rights Commission v North American Life Assurance, accepted that a company could make distinctions based upon health status to protect benefit coverage, but stated that an offer of employment could not be conditioned upon enrolment in an employee benefit plan.[203]
4.14 While it is accepted that certain jobs may pose heightened risks to employees with HIV, such as additional stress (which has been shown to hasten the onset of AIDS[204]) or exposure to opportunistic infection, it is argued that the employee is best situated to determine his or her own interests. Non-voluntary testing is unlikely to enhance an individual's ability to determine those interests.[205] In an occupation where exposure to active and untreated tuberculosis is likely, all employees should be encouraged to take steps to protect against tuberculosis infection. Testing of applicants for employment may more generally give employees the false sense of security that general infection control measures are not necessary.
4.14.1 The Democratic Nursing Association of South Afrca argued that good standards of occupational health should be established for all employees, while the AHI questioned whether persons with HIV, in circumstances where their health was threatened, would decline a job, resign, or lose income or a promotion to reduce HIV-related stress.
4.15 It is argued that widespread pre-employment testing may, paradoxically, facilitate the transmission of HIV by creating a false sense of security about the need for precautionary measures amongst employees who have tested negative for the virus. In addition it is argued that the only ways to reduce the high rates of sexual transmission of HIV is to encourage condom use, fidelity with sexual partners, or abstinence. An individual's decision to engage in unprotected sexual intercourse involves calculations of a highly personal order, which could include a decision to test for HIV or to engage in conversations with his or her sexual partner(s) about fidelity.
4.15.1 It is unlikely that personal risk assessment decisions will be encouraged by non-voluntary workplace testing. The AHI supported this contention.
4.16 Widespread mandatory testing - as a means of reducing the rates of HIV transmission - has been disavowed by almost all public health officials.[206] Unfair discrimination against people with HIV is invidious and impedes national prevention efforts by creating disincentives to counselling and testing of the infected.[207]
4.17 Although there may be a high climate of fear and antagonism surrounding HIV and AIDS, it is argued that this alone cannot justify discrimination based upon unfounded fears. Allowing discrimination on the basis of unfounded fear would also justify other irrational attitudes. A service provider could attempt to justify discriminatory practices on the basis of clientele preferences. While the law might not be able to eradicate pervasive fears surrounding HIV and AIDS, it should not give cognizance to irrational and unfair discrimination by holding efforts to promote equality in abeyance until social biases dissolve.[208]
4.17.1 The Democratic Nursing Association of South Africa stated that the fears of co-workers need to be addressed by educational programmes.
4.17.2 The City Council of Pretoria Medical Officer of Health submitted that measures to ensure confidentiality could reduce co-worker fears based on unauthorised disclosure of HIV status of employees.
4.18 A legislative prohibition on pre-employment testing is not in all respects strictly comparable to legislation that creates regulatory burdens on employers. The legislation will merely require employers to refrain from one kind of overt exclusion of otherwise qualified job applicants. As discussed above, the benefits derived from testing all applicants for employment for HIV appear to be minimal, and the costs associated with a legislative prohibition on testing will generally not be high. It is therefore unlikely that such costs as may be added by prohibition of pre-employment testing will serve as a significant inhibition to investment. In fact, a prohibition on pre-employment testing may simply result in employers offsetting anticipated cost increases by limiting their wage and other expenditures.
4.18.1 The costs created for employers by a prohibition on pre-employment tests are primarily the costs of the epidemic. The costs are those society will be faced with in one way or another. An employer will, strictly speaking, not be able to exclude these costs by excluding applicants with HIV. The crucial investment considerations are likely to be the overall costs of the epidemic in a specific country, rather than the mere appearance of regulatory intervention. No country will be able to exclude the costs of HIV. Even in Cuba, where the involvement of people with HIV in the economy is severely limited, the costs of the epidemic are still borne through the loss of labourers, the need for repetitive testing of the population, and the cost of providing care for those too sick to provide for themselves.[209] It can be argued that the best way to encourage investment in job creation is to manage the costs of the epidemic by helping promote prevention campaigns and by counselling, care and treatment.
4.18.2 The ALN submitted that the legislation envisaged would not force employers to hire certain groups of people or create capital flight - instead it will ensure that there is an equal starting line for job applicants.
4.19 In principle, HIV and AIDS should be treated no differently from other life threatening diseases. This principle informs the entire national response to the epidemic.[210] To realise that principle in practice, however, special measures may be warranted.
4.19.1 The scale of the epidemic is singular, and no other disease will exact a comparable toll in illness and death. Given this scale, it is argued that the epidemic requires special measures. The question remains whether such special measures could ever take the form of widespread pre-employment testing - a mechanism that invades some of the most valuable rights of personality - or whether it is not clear that coercive measures are ineffective at curtailing the epidemic. In fact, given the singular features of the infection and its progression, it may be argued that allowing coercive measures (under the guise of employers' rights) actually facilitates the epidemic by undermining confidence in health care professionals, driving people away from educational programs, discouraging full disclosure, creating a false sense of security among those who test negative, and wasting limited resources that might be spent upon other more effective prevention efforts.[211]
In addition, no other disease appears to face the extent of stigma and discrimination that confront people with HIV and AIDS. Irrational treatment confounds rational responses to the epidemic. It is argued that HIV and AIDS are being singled out by employers and that people with HIV specifically are being excluded from employment. If people with other conditions were unfairly being denied access to employment, specific legislative measures might be argued to be necessary in these cases as well.[212]
[162] Albertyn and Rosengarten 1993 SAJHR 85-86; Arendse 1991 ILJ 218-227; Cameron 1993 Employment Law 8-10; Evian 1991 27-29; Fluss 1988 World Health Forum 365-369; Business Day 20 February 1997; Lacob 1996 De Rebus 396-400; London and Myers 1996 SAMJ 329-330; SALUS December 1994 10-11; Australia Discussion Paper Employment Law 25-27.
[163] Kirby 1993 SAJHR 3- 4; Cameron 1993 SAJHR 27; Trebilcock 1989 International Labour Review 30.
[164] Van Wyk 128-155; Van Wyk 1991 Medicine and Law 144-147; Van Oosten Essays in Honour of SA Strauss 282-283, 286, 289.
[165] Van Oosten Essays in Honour of SA Strauss 282.
[166] Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 2 SA 451 (A) 462E-F; Jansen van Vuuren v Kruger 1993 4 SA 842 (A) 849E-F. See par 5.11.1-5.11.4.
[167] Bernstein v Bester 1996 4 BCLR 449 (CC) 483E-G. See par 5.16-5.16.2 for an American view of the right to privacy. See par 5.26 for the European Court of Justice's similar view of the right to privacy.
[168] Jansen van Vuuren v Kruger 1993 4 SA 842 (A) 849E-F. See par 5.11.1-5.11.4.
[169] Cf Cover 1982 Yale Law Journal 1287(Lexis Nexis); Halley 1994 Stanford Law Review 503 (Lexis Nexis). Both Halley and Cover argue that the fairness of discrimination, in the context of race and sexual orientation, should be scrutinized - not in mere terms of biological characteristics - but with a historical sense of socially generated stereotypes. Cf also Labour Sector 1997 Response to SALC Presentation 2.
[170] Neethling 106, 274; Neethling Huldigingsbundel vir WA Joubert 118; cf also Van Wyk 129, 278-279. See fn 206 below for a definition of "mandatory testing".
[171] See Arendse 1991 ILJ 220: "According to the best scientific evidence, the HIV or AIDS infected employee does not, in the performance of his or her normal workplace activities, constitute a risk to other employees". See also Cameron 1993 Employment Law 8-10; London and Myers 1996 SAMJ 329-330; Matjila (Unpublished) 6-8; Labour Sector 1997 Response to SALC Presentation 6-7.
Matjila (Unpublished) 7; Bell and Chamberland 1992 Annals of Internal Medicine 871; McIntyre (Unpublished) 1, 6; Wicher 1993 (MEDLINE Abstract); An United States Appellate Court has noted that there was between a one 42 000 and a one in 417 000 chance of transmission from doctor to patient during exposure prone procedures (Doe v University of Maryland Medical System Corporation 50 F 3d 1261 (1995)). (The court distinguished between an "exposure prone procedure" - involving the digital palpation of a needle tip or knife in a poorly visualized or highly confined space - and most types of surgery that create an even tinier chance of HIV transmission.)
[173] CDC Morbidity and Mortality Weekly Report 12 July 1991 1.
[174] Matjila (Unpublished) 7, 8.
[175] Doe v District of Columbia 769 F Supp 559 (1992).
[176] Commonwealth of Australia v The Human Rights and Equal Opportunity Commission and 'X' No Qg 115 of 1995, 1996 Aust Fed Ct (Lexis 859).
[177] Ibid 38. Cf also par 5.17.6 for a full discussion of this case and its premises.
[178] South African Law Commission First Interim Report on Aspects of the Law Relating to AIDS (Project 85) February 1997, par 3.1-3.25. See also the comment by the AHI which supported this argument.
[179] Fleming (Unpublished) 5 states: "The possibility of HIV-transmission from health care worker (HCW) to patient is immeasurably small. The rights of a HCW with HIV are the same as any other person with HIV". See also the SA Nursing Association in Conversation with SA Strauss 1994 which states (at 8): "The fact that a health care worker has AIDS does not provide sufficient justification for denying him his livelihood. The possibility of the AIDS virus being communicated to a patient by an HIV-infected health care worker in the course of delivering health care is very slight and can be avoided by taking effective preventive measures".
[180] As quoted in WHO Report of an International Consultation on AIDS and Human Rights 1989 50.
[181] Maj et al 1994 Archives of General Psychiatry 51 et seq.
[182] Iragui et al Electroencephalography and Clinical Neurophysiology 1.
[183] Burgess et al 1994 Psychological Medicine 886, 888, 890.
[184] Albert 1995 Archives of Neurology 527.
[185] Ontario Report 63, fn 204, 205.
[186] Baily and Mandal 1995 AIDS 711-712; cf however AIDSScan December 1995 9.
[187] AMFAR AIDS/HIV Treatment Directory June 1996 135-138.
[188] Ontario Report 27; cf also Labour Sector 1997 Response to SALC Presentation 5.
[189] Cameron 1991 ILJ 201-203.
[190] Albertyn and Rosengarten 1993 SAJHR 77.
[191] Cf par 3.6.3 above for counter arguments.
[192] Sec 2(2) of Schedule 8 of the Labour Relations Act (Act 66 of 1995) (LRA) provides that "(T)his Act recognises three grounds on which a termination of employment might be legitimate. These are: the conduct of the employee, the capacity of the employee, and the operational requirements of the employer's business". See also Labour Sector 1997 Response to SALC Presentation 5-6.
[193] Colebunders and Ndumbe 1993 The Lancet 601; Kimball and Myo 1996 The Lancet 1670.
[194] Arendse 1991 ILJ 226-227.
[195] Orthmann Law and Policy Reporter July 1996 107. Orthmann reports that the viral load test kits were approved for use by the FDA in June 1996. These tests are suggested, by Orthmann and others, to be a better predictor of disease progression (and of seropositivity) than the current method of counting CD4+ T-cells. These tests may be beneficial in diagnosing occupational transmission of HIV from patient to health care workers, and may assist in providing treatment. See also fn 41 above.
[196] For a definition of incapacity see: Burdekin v Dolan Corrugate Containers Ltd 1972 IRLR 9; Hebden v Forsey and Son 1973 ICR 607; Marshall v Harland and Wolff Ltd 1972 ICR 101; Seeboard Plc v Fletcher 1990 EAT 471; Tan v Berry Bros and Rudd Ltd 1974 ICR 586. See also Schedule 8 of the LRA which deals with when, and under what conditions, an employee may be dismissed because of incapacity (sec 10).
[197] Trebilcock 1989 International Labour Review 34 states: "(I)n the vast majority of cases there is no relationship between a person's seropositive status and the job he or she will have to perform and hence there is no justification for testing". Van Wyk 1991 Codicillus 7 states: " It would hardly seem ethical to exclude all seropositive people from the workplace ... No reason exists in the normal workplace to treat HIV-positive workers differently - they are usually able to do their work and will possibly remain that way for a long time".
[198] See Gostin 1991 American Journal of Law and Medicine 110 et seq for a discussion of the possibility of genetic testing and the invidious discrimination that may as a result occur.
[199] Ibid 109.
[200] Cf the arguments in par 3.6.1 above.
[201] See par 3.6.4 above.
[202] Cf Labour Sector 1997 Response to SALC Presentation 8-9.
[203] Ontario Human Rights Commission v North American Life Assurance Co 123 DLR 4th 709 (1995).
[204] Jansen van Vuuren v Kruger 1993 4 SA (A) 854I-J.
[205] Labour Sector 1997 Response to SALC Presentation 7.
[206] The Draft UNAIDS Policy on HIV Counseling and Testing 1996, developed after discussion at the Workshop of HIV Counseling and Testing Experts in the Asian Region, December 1996, defines "mandatory testing for HIV" as inclusive of those situations in which "refusal of testing [by the subject] is not realistic or would cause the individual undue hardship, as when the HIV testing is required prior to employment or marriage" (Draft Policy 2). The Policy states: "Mandatory testing is likely to have harmful effects on public health effort to reduce transmission" (Draft Policy 5 - emphasis added).
[207] Ibid 5. Cf Jansen van Vuuren v Kruger 1993 4 SA 842 (A) 850B-E.
[208] For the enunciation of this view, in the American context, see Palmore v Sidoti 466 US 429 (1984) where the Court emphatically states that "(I)t would ignore reality to suggest that ... prejudices do not exist or that all manifestations of those prejudices have been eliminated ... The question, however, is whether the reality of private biases and the possible injury they might inflict are permissible considerations ... We have little difficulty concluding that they are not. The Constitution cannot control such prejudices but neither can it tolerate them".
[209] Cf Lachman 489-490, Van Wyk 167, Kirby SAJHR 10, 12-13, and Fluss 1988 World Health Forum 368 for more information on HIV prevention in Cuba.
[210] NACOSA National AIDS Plan as adopted by the Government.
[211] Cameron and Swanson 1992 SAJHR 202-203; Draft UNAIDS Policy Statement on Counseling and Testing 1996 5.
[212] Comments regarding AIDS exceptionalism are extensively dealt with in par 7.19-7.27 below.
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