10 February 2004
Legislation to Prohibit Pre-Employment HIV Testing is Needed

“Botswana urgently needs legislation to prohibit employers from testing prospective employees for HIV” the Botswana Network on Ethics, Law and HIV/AIDS (BONELA) said today. The organisation noted that although the National Policy on HIV/AIDS states that pre-employment HIV testing is unecessary and should not be conducted, this policy is neither binding on employers nor legally enforceable.

The need for legislation in this area was highlighted by a case which came before the Court of Appeal last week (I.C. Case No. 35, 2003, Civil Appeal No. 37, 2003).  An HIV-positive man was offered employment as a security guard with the Botswana Building Society (BBS). He passed his pre-employment medical examination. Nineteen days later the employee was informed he was further required to undergo an HIV test.  He tested positive and received his test results from BBS enclosed with a letter of termination.

While the Industrial Court and the Court of Appeal disagreed on whether the HIV test formed part of the pre-employment medical examination, judges in both courts noted the problematic lack of legislation in this area. The Court of Appeal commented that the National Policy has “never been translated into law and [has] no statutory authority.” Judge Legwaila, Judge President of the Industrial Court noted that in this case:

“The Applicant lost his employment because of an indiscriminate policy of the employer who took advantage of the absence of restraining legislative instruments. It was not that at that point in time the Applicant was found to be incapacitated but simply because he was HIV positive. This is not the type of prejudice that can be left to the courts to tackle.”

BONELA supports Judge Legwaila’s plea for legislation to prohibit pre-employment HIV testing and HIV-based discrimination in the workplace. The organisation has worked with unions, NGOs, government departments and representatives of the private sector to draft a policy framework on HIV/AIDS and employment identifying key principles to be included in future legislation. BONELA also continues to work with key stakeholders towards the development and implementation of legislation protecting the rights of people living with HIV in the workplace.

For any clarifications contact:
Botswana Network on Ethics, Law and HIV/AIDS (BONELA)
Tel: 393 2516
Fax: 393 2517
E-mail: Bonela@botsnet.bw