Common use of HIV Testing Clause in Contracts

HIV Testing. 7.1.1 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. As provided for in the Employment Equity Act, employers may approach the Labour Court to obtain authorisation for testing. 7.1.2 Whether Clause 7(2) of the Employment Equity Act prevents an employer – provided health service supplying a test to an employee who requests a test, depends on whether the Labour Courts would accept that an employee can knowingly agree to waive the protection in the clause. This issue has not yet been decided by the courts. The Employment Equity Act does not make it a criminal for an employer to conduct a test in violation of Clause 7(2). However an employee who alleges that his or her right not to be tested has been violated may refer a dispute to the CCMA for conciliation, and if this does not resolve the dispute, to the Labour Court for determination. 7.1.3 In implementing the clauses below, it is recommended that parties take note of the position set out in item 7.1.2. 7.1.4 Authorised testing Employers must approach the Labour Court for authorisation in, amongst others, the following circumstances: (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 programs; and (v) as an access requirement to obtain employee benefits.

HIV Testing. 7.1.1 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. As provided for in the Employment Equity Act, employers may approach the Labour Court to obtain authorisation for testing. 7.1.2 Whether Clause Section 7(2) of the Employment Equity Act prevents an employer – provided health service supplying a test to an employee who requests a test, depends on whether the Labour Courts would accept that an employee can knowingly agree to waive the protection in the clausesection. This issue has not yet been decided by the courts. courts.2 The Employment Equity Act does not make it a criminal for an employer to conduct a test in violation of Clause section 7(2). However an employee who alleges that his or her right not to be tested has been violated may mar refer a dispute to the CCMA for conciliation, and if this does not resolve the dispute, to the Labour Court for determination. 7.1.3 In implementing the clauses sections below, it is recommended that parties take note of the position set out in item 7.1.2. 7.1.4 Authorised testing Employers must approach the Labour Court for authorisation in, amongst others, the following circumstances: (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 programs; and (v) as an access requirement to obtain employee benefits.

HIV Testing. 7.1.1 7.1.1. 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. As provided for in the Employment Equity Act, employers may approach the Labour Court to obtain authorisation for testing. 7.1.2 7.1.2. Whether Clause s 7(2) of the Employment Equity Act prevents an employer – employer-provided health service supplying a test to an employee who requests a test, depends on whether the Labour Courts would accept that an employee can knowingly agree to waive the protection in the clausesection. This issue has not yet been decided by the courts. 2[1] 7.1.3. In implementing the sections below, it is recommended that parties take note of the position set out in item 7.1.4. Authorised testing Employers must approach the Labour Court for authorisation in, amongst others, the following circumstances: 2[1 The Employment Equity Act does not make it a criminal offence for an employer to conduct a test in violation of Clause s 7(2). However an employee who alleges that his or her right not to be tested has been violated may refer a dispute to the CCMA National Bargaining Council for conciliation, and if this does not resolve the dispute, to the Labour Court for determination. 7.1.3 In implementing the clauses below, it is recommended that parties take note of the position set out in item 7.1.2. 7.1.4 Authorised testing Employers must approach the Labour Court for authorisation in, amongst others, the following circumstances: (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 programsprogrammes; and (v) as an access requirement to obtain employee benefits.