An employer (“Applicant”) planned to require a sample of its 1100 employees to undergo voluntary and anonymous HIV testing. Applicant defended its intention by claiming that in planning for manpower needs, it was necessary to assess the prevalence of HIV among employees. Applicant also intended to use the test results to determine the impact of HIV in the workplace, establish support facilities for employees living with HIV, and develop preventive measures to protect employees from infection. Applicant had already undertaken measures to raise employees’ awareness of HIV/AIDS, and to encourage them to seek voluntary testing and counseling. Section 7(2) of the Employment Equity Act 55 of 1998 prohibits the “testing of an employee to determine that employee’s HIV status” unless the Labor Court ﬁnds that the testing is justiﬁed. Applicant asked the Labor Court to declare that its plan for anonymous and voluntary HIV testing did not fall under Section 7(2) of the Act, or alternatively, that the plan was justiﬁed under the Section.
The issue in this case was whether Applicant’s plan to anonymously and voluntarily test some of its employees for HIV was fell under and was prohibited by Section 7(2) of the Act.
The Court noted that the fundamental purpose of Section 7 is to prevent employers from unfairly discriminating against employees based on their health. The Court reasoned that in determining whether testing falls under Section 7, one must consider whether either the intent or the effect of the testing is discriminatory. The Court first determined that the two ways this testing might not be discriminatory was because it is anonymous and voluntary. The Court examined each aspect separately.
First, the Court examined the issue of anonymous testing, noting that there is no risk of discrimination based on medical condition when the employer cannot identify which employees have HIV. The Court further explained that the prohibition on HIV testing on employees was established to prevent the employer from learning of the specific employee’s HIV status. The Court therefore reasoned that when the employer is unable to ascertain the status of a specific employee, they cannot determine whom of their employees is HIV positive and thus cannot subject anyone to unfair discrimination. The Court required a slight alteration in the dissemination of the results (combine the results of all employees between the ages of 16-35 for statistical purposes) to ensure anonymity among all employees. As long as the Court is assured that Applicant will not have access to the testing result of a particular employee, Applicant’s plan does not fall within the scope of Section 7(2). The employer must therefore ensure the anonymity of the testing, which must be conducted by an independent, professional testing agency.
The Court then clarified the difference between voluntary and compulsory testing, and held that Section 7 applies to all compulsory testing, but not to truly voluntary testing. In this regard, employers cannot attach any sanction or disadvantage to employees who refuse to undergo testing. Section 7 therefore applies only to compulsory or involuntary testing. In such cases, employers require a court order before proceeding with their testing program. The Court reasoned that prohibiting voluntary testing would adversely impact people who would like to be tested, and it was unlikely the legislature wished to restrict access to voluntary testing services when it instituted Section 7. The Court added that Section 7 does not prohibit the employer from knowing the employee’s HIV status if the employee voluntary informs the employer. Section 7 aims to prohibit the employer’s non-consensual acquisition of an employee’s HIV status which may result discrimination against the employee.
The Court concluded that anonymous and voluntary HIV testing of employees is not prohibited by Section 7 of the Act. It was therefore unnecessary to address the question of justiﬁability.