Compulsory HIV test for salon and spa attendants
I operate big barbershops and spas which offer various services including massage, hair cuts and scrub. My salons and spas were visited by city health inspectors who wanted to know if the spas and salons attendants have undergone HIV and other medical tests in the past six months. The inspectors claimed that it is the requirement of the law that spas and salon attendants must undergo HIV and other medical tests after every six months. I would like to know from you if it will be fair and lawful for me as an employer to force an employee to undergo HIV testing or other medical tests simply because of the nature of his or her job or because I am the employer. Secondly, I would like to know if forcing an employee to take a medical test is not a breach of human rights. If a spa or a salon attendant is diagnosed HIV positive, will I be compelled to terminate his or her employment? And if I force the attendants to undergo medical examinations as health inspectors are saying, will I have the right to know the HIV test result of the employees? Will it be mandatory for me to share the medical examination results of the attendants with the city health inspectors to prove that the attendants have undergone medical examination? No other spa owner does such testing and why should I? Please guide me.
Section 152(o) of the Public Health Act, 2009 gives lthe authority power to inspect salons and spas to see if the spas and salon proprietors cause their attendants to undergo medical examination after every 6 months. A salon or spa proprietor who fails to cause his attendants to undergo medical examination every 6 months commits an offence under the Public Health Act. The law does not specify what kind of medical examinations the spa and salon attendants are required to undergo after every 6 months. Because the purpose of the medical examination for spa and salon attendants is to avoid the spread of infectious and communicable diseases from the attendants to their customers, we think the medical examination envisaged by the law includes the examination of infectious and communicable diseases, HIV being one of them.
Since medical examination for spa and salon attendants is a statutory requirement, we do not think enforcing the law amounts to a prohibited forced HIV testing or violation of human rights. There is no absolute human right; human rights must be enjoyed within the parameters of the law and in protection of the rights of others. We understand section 15(3) of the HIV and AIDS (Prevention and Control) Act, 2008 prohibits forced HIV testing. However, we think that such provision was not meant to circumvent the implementation of the provisions of other health laws like the provisions of section 152(o) of the Public Health Act which requires spa and salon proprietors to cause their attendants to take medical examination after every 6 months in order to know the attendants’ health status and avoid transmission of infectious and communicable diseases to customers. People living with HIV and AIDS have the duty under section 33(2) of the HIV and AIDS (Prevention and Control) Act to protect others from infection.
Since medical examinations for spa and salon attendants is a statutory compliance issue, a proprietor of salon will definitely be required to have the proof of the examinations taken by his or her attendants. This means, a spa or salon proprietor is required to have the medical examination reports of the attendants and show them to the city health inspectors when the inspectors pay their regular inspection visits to the spas and salons. Spa or salon proprietors and health inspectors need to bear in mind that section 17(2) of the HIV and AIDS (Prevention and Control) Act, 2008 imposes an obligation on any person who receives HIV test results to observe confidentiality. So both a spa or salon proprietor and city health inspectors must observe confidentiality of the HIV results they receive. Breach of the duty of confidentiality is a punishable offence under the HIV and AIDS (Prevention and Control) Act.
It is an offence under section 30(c) of the HIV and AIDS (Prevention and Control) Act to terminate an employee because he or she has been tested HIV positive. A spa or salon attendant who has tested HIV positive will not be terminated from employment because of his/her HIV status. However, the HIV test result may be used by the health inspector to guide the spa or salon attendant and the proprietor how to ensure safety of customers by, let us say, assigning the attendant another role which does not pose risk of transmission of HIV from the attendant to the customers.
Using wild beast tails for traditional dances
We are a registered traditional dance group and in our dances use wild beast tails. Some of our members have recently been arrested and charged with the offence of unlawful possession of government trophies in that they have been found in possession of wild beast tails without a permit from the wildlife authority. Can you guide us if a registered traditional dance group like ours is required to have a permit from the wildlife authority to possess wild beast tails which are used only for performance of traditional dances?
Section 85(1)(b) of the Wildlife Conservation Act defines a government trophy to include any part of the wild animal so the wild beast tail is a government trophy. It is an offence under section 86(1) of the Wildlife Conservation Act to possess a Government trophy without a permit issued by the Wildlife Authority. Being registered as a cultural dance group does not automatically confer on the group or its members the right to possess government trophies for their cultural dances without a permit from the Wildlife Authority.
Registration of the cultural group and the issuance of permits to possess government trophies are governed by different laws. Possession of government trophy is an economic offence specified under paragraph 14 of the First Schedule to Economic and Organised Crimes Control Act and its minimum penalty prescribed under section 60(2) is 20 years imprisonment regardless of the value of the trophy or specie of the wildlife.