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n Lesotho Law Journal - The HIV/AIDS pandemic and the labour laws of Lesotho
Laws and policy documents have been developed in an attempt to deal with the pandemic of HIV and AIDS. It is universally recognized that HIV/ AIDS affects mostly the working populations. Hence the best place to concentrate efforts at combating the disease is at the workplace. One of the methods of dealing with this disease is through screening of HIV infection at the workplace. This raises issues of discrimination where it may be used as a yardstick to determine the employability of a person or the mobility of an employee in the work ladder.
The Constitution of Lesotho provides that 'Subject to the provisions of subsections (4) and (5) no law shall make any provision that is discriminatory either of itself or in its effect'. The National AIDS Policy of Lesotho states in clear terms that to deny a person employment on the basis of his or her HIV status is tantamount to discrimination. Yet there are institutions which have made it compulsory for any applicant to test HIV before being employed. There seem to be very strong and persuasive reasons for mandatory testing of HIV at all sections of the society especially at the production sectors.
This paper argues that the path followed by Lesotho in policy formulation seems to be heading towards making it mandatory for every one to test for HIV/AIDS despite the constitutional provisions and the principles of the policy. However, the solution can be not to rely entirely on voluntary testing thus neglecting the importance of knowing the HIV status of all employees in any one organization-but reserve the power or right to demand mandatory testing for the employer where there are compelling reasons. In other words, it is possible to have voluntary testing which relies very heavily on availability of medication and other resources, together with mandatory testing whenever a situation so warrants-and this should apply to all sectors of the economy.
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