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HIV/AIDS and Education Policy – Legal issues

Explore the legal aspects of HIV/AIDS education policy, including the impact on educators and learners, workplace responses, key legal principles, international guidance, South Africa's policies, case laws, and future directions.

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HIV/AIDS and Education Policy – Legal issues

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  1. HIV/AIDS and Education Policy – Legal issues Mark Heywood AIDS Law Project Centre for Applied Legal Studies, Wits University heywoodm@law.wits.ac.za

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

  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)

  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

  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

  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

  7. Key Legal Principles • Non-discrimination and Equality • Individual autonomy • Reasonable accommodation

  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)

  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

  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

  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.

  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

  13. Relevant labour law : Generic (non-HIV specific) • Labour law: • Basic Conditions of Employment Act • Laws dealing with health and safety • Laws dealing with compensation for occupational injury • Medical Schemes Act

  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

  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)

  16. Other relevant law • Laws governing children • Constitutional law • Common law principles regarding privacy • Delict / duty of care

  17. Future Directions • Prevention … and Treatment in the workplace

  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

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