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Some FAQ’s regarding your nannies' HIV status in the home
What exactly does the law state regarding HIV related discrimination?
A nanny cannot be dismissed just because she has HIV. This is called an automatically unfair dismissal because she has been dismissed only because of her HIV status, not because she cannot do the work.
Can you ask a domestic worker her HIV status prior to employment?
There is no law saying you cannot ask but you cannot ask her to go for a HIV test.
Can you ask your domestic worker employed in your service to be tested for HIV?
No. The law says that your employer must get permission from the Labour Court first before she can ask you to test for HIV.
If she agrees of free will, can you ask her to reveal her status?
Yes but she has to give you the information and not the doctor.
If she does and she’s positive, what should you do?
You cannot dismiss her unless she is too sick to work. You can only support her educational process and emotional state during this time. Education takes away the fearful assumptions about the disease. This is an important step for both the employer and employee to take to help come to terms with a nanny’s HIV status.
It’s obviously against the law to fire your nanny?
A nanny cannot be dismissed just because she has HIV. This is called an automatically unfair dismissal because she has been dismissed only because of her HIV status not because she cannot do the work. But an employer is allowed to dismiss a nanny if she is too sick to work – for example if she is sick with AIDS and her/your doctor tells you that you will not be able to work again.
What could / should a nanny do if she is dismiss unfairly relating to HIV?
If a nanny is dismissed just because you has HIV, she can take you the employer to the CCMA (Commission on Conciliation, Mediation and Arbitration), a special organization that deals with labour cases. She must take your complaint to the CCMA within 30 days. Organisations like the AIDS Law Project or an advice office can give you more information about how to take a complaint to the CCMA.
What is the chance of infection from domestic worker to child? Through a cut etc?
You CANNOT get HIV from sharing cups and plates, cooking, using the same toilet, touching, hugging or kissing.
Have a read through this great presentation - Domestic worker Aids Law. Its a good guide for an employer and employee to understanding their rights regarding HIV and AIDS in the home.
For more info on childcare issues go to: www.supernannies.co.za
