1. HIV/AIDS and Education Policy – Legal issues
Mark Heywood
AIDS Law Project
Centre for Applied Legal Studies, Wits University
2/16/2019

2. Overview Epidemiology and impact
Role of the education sector in HIV prevention & treatment
The legal framework
International and regional
South Africa
Future directions
2/16/2019

3. Epidemiology…… and impact
How does HIV impact on the education sector?
Directly – teachers & children infected
Indirectly – teachers and children affected
HIV infection
AIDS & death
Challenge is not only to slow the curve of new infections (PREVENTION), but also to slow the curve of AIDS (TREATMENT)
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4. Objectives of an education policy ??
An OPPORTUNITY to mitigate the impact of HIV on:
Educators
Learners
Parents
The education system as a whole
Policy needs to look inwards and outwards
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5. Key Elements of a Workplace Response
Education and accurate information to create knowledge about HIV
Promotion of non-discrimination (educators and learners)
Promotion of VCT (educators and adolescents)
Access to prevention technologies
Information about and access to treatment
MONITORING AND REVIEW
2/16/2019

6. Areas where law impacts on education policy
HIV testing:
Of educators and learners
Privacy and Confidentiality
Risk of infection???
Infection control procedures
Illness (sick leave and termination)
Access to treatment
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7. Key Legal Principles Non-discrimination and Equality
Individual autonomy
Reasonable accommodation
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8. International and Regional Guidance
ILO Code of Good Practice on HIV/AIDS and the World of Work (2001)
SADC Code on HIV/AIDS and Employment (1998)
UN International Guidelines on HIV/AIDS and Human Rights (1998)
UNGASS Declaration (2001)
SADC Maseru Declaration of Heads of State on HIV/AIDS (2003)
2/16/2019

9. Existing Policy / South Africa
Code of Good Practice on Key Aspects of HIV/AIDS and Employment – 2000
Technical Guidelines on Code
National HIV Testing Policy –
Policy not law – but many components legally binding
Confidentiality: Jansen van Vuuren v Kruger NNO (“McGeary”)
Informed consent: C v Minister of Correctional Services
2/16/2019

10. Example:
National Policy on HIV/AIDS for Educators and Learners in Public Schools, and Students and Educators in Further Education and Training Institutions
Non-discrimination
HIV Testing
Attendance by learners with HIV
Disclosure
A Safe School and Institution Environment
Prevention of HIV transmission during play and sport
Education
Duties of Learners, Students, Educators and parents
Refusal to study with or be taught by ….
Implementation Plans
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11. Case Law: South Africa
Hoffman v South African Airways (SAA) 2001 (1) SA 1 (CC) :
“People who are living with HIV must not be condemned to “economic death” by the denial of equal opportunity in employment.
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12. Hoffman Judgment sets out relevant facts about HIV for the workplace:
HIV not casually transmitted;
Risk of infection in the workplace minimal;
Asymptomatic HIV infection doesn’t impact on capacity to work;
Non-discrimination: people with HIV must not be stereotyped
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13. Relevant labour law : Generic (non-HIV specific)
Basic Conditions of Employment Act
Laws dealing with health and safety
Laws dealing with compensation for occupational injury
Medical Schemes Act
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14. HIV specific labour law (South Africa): The Employment Equity Act (1998)
Includes “HIV/AIDS status”
S7(2) prohibits HIV testing at the request of the employer ….
“Testing of an employee to determine that employee’s HIV status is prohibited unless such testing is determined to be justifiable by the Labour Court in terms of Section 50(4) of this Act.”
…. Unless permission
is given by the labour court
2/16/2019

15. Meaning of the EEA?
Does not prohibit Voluntary Counselling and Testing (VCT)
Permission of Labour Court not needed for VCT:
“It is declared that the anonymous and voluntary medical testing …, does not fall within the ambit of section 7(2) of the Employment Equity Act 55 of 1998.” (I&J)
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16. Other relevant law Laws governing children Constitutional law
Common law principles regarding privacy
Delict / duty of care
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17. Future Directions Prevention … and Treatment in the workplace
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18. Conclusion Law will guide employers to best practice
Policy should aim to create a climate of openness and non-discrimination
Understanding HIV/AIDS is important for educators and learners
2/16/2019