Workplace Health Law

Employees with HIV/AIDS: Workplace Policies

It is important to recognize that many persons with HIV/AIDS will be able to continue to perform their job duties for as long as their health permits. Unfortunately, however, the early history of HIV/AIDS contains many unhappy stories regarding HIV/AIDS and employment. Employers, in the early days, forced out infected employees; fellow employees and superiors have ostracized persons thought to be infected, whether they were or not; and members of the public have refused to deal with infected employees.

This insensitive treatment of persons infected with HIV pointed to a lack of understanding as to how the infection is spread, and the absence of risk associated with the vast majority of workplace settings. As the World Health Organization states: “In the vast majority of occupations and occupational settings, work does not involve a risk of acquiring or transmitting HIV between workers, from worker to client, or from client to worker.”

Putting Privacy Principles into Practice in Workplace Policies

In order to adequately protect personal privacy, workplace policies must contain specific provisions dealing with this issue. In this section, we explain the privacy protection principles that should be addressed at a minimum, in all workplace policies. Several of the draft or final workplace policies we have examined already deal with some of these principles, although in some instances additional considerations need to be addressed.

It is important to note that these are general privacy protection principles only. We cannot envisage every situation that may give rise to a desire to collect, use or disclose HIV/AIDS-related personal information about employees. Legitimate exceptions may exist. However, those who intend to claim an exception must be prepared to justify it in the context of an invasion of personal privacy.

It is far preferable to have a policy firmly in place before a workplace issue arises, demanding immediate action to be taken.

No Mandatory Testing

HIV/AIDS-related personal information should be collected only in some cases. Collection must meet at least, in some jurisdictions, one of the following three criteria:

• collection must be expressly authorized by law or statute;
• collection must be necessary for the purposes of law enforcement; or
• collection must be necessary to the proper administration of a lawfully authorized activity.

Nowhere do we find any justification for mandatory HIV testing of employees, other than anonymous, unlinked seroprevalence surveys and the testing of donated blood, semen, embryos, organs and tissue; none of which apply in the employment context. At the same time we acknowledge that individual ministries or agencies in the government may ignore our recommendation and impose testing requirements on certain groups. If this happens, we feel strongly that testing should only be imposed where specifically authorized by legislation.

Mandatory testing as a condition of securing or retaining employment is not warranted. All workplace policies should include a statement to this effect. At the same time, certain employers should advise employees of the risk of infection in particular circumstances. Different workplace guidelines would apply to a hospital or health care setting.

As a corollary, there should be no obligation on an employee or person seeking employment to disclose information about HIV/AIDS in order to obtain or continue employment. (We discuss the restrictions on personal information volunteered by an employee or prospective employee below) We can think of only one possible exception to this statement: where being HIV negative or free from symptoms of AIDS is a bona fide occupational requirement. However, there are no situations which we can envision where being free of HIV/AIDS is a bona fide occupational requirement.

Some jobs such as aircraft pilots, for example, may require unimpaired physical and mental conditions and some persons with HIV/AIDS may not be able to meet those job requirements. But it is not the fact of being HIV-infected that is relevant here; it is the actual physical condition or mental deterioration that prevents job performance, regardless of the cause. Rather than requiring HIV/AIDS-related personal information such as a test result to assess fitness, an employer could simply demand a medical diagnosis that focuses on the ability of the candidate to perform essential job requirements. It would not be necessary to disclose the exact condition that makes the person unfit. In our view, additional details are unnecessary and could result in an unjustified invasion of personal privacy.

An employee should also be under no obligation to disclose HIV/AIDS-related personal information to co-workers. An employee’s HIV infection alone is not an adequate reason for a co-worker to refuse to work along side the infected person. Co-workers have no right to know this information about their colleagues since such information is irrelevant in the normal workplace. Nor should employers disclose HIV/AIDS-related personal information to an infected employee’s co-workers. Only if an infected employee could put a co-worker at real, as distinct from imagined risk of infection, should consideration be given to disclosing HIV/AIDS-related personal information to co-workers. We can think of no circumstance where this situation would arise. Normal workplace conditions simply do not provide an environment for HIV transmission because HIV cannot be transmitted by casual contact.

Educating Employees About HIV/AIDS-related Privacy Concerns in the Workplace

Education is an essential part of the process of protecting HIV/AIDS-related personal information. Ministries and agencies must make education an important component of their response to HIV/AIDS in the workplace. The education program should have at least three elements:

• a description of HIV/AIDS and how it is transmitted. We invite readers to see this other entry in the legal encyclopedia for that purpose;
• a review of the possible adverse consequences (to the person to whom the information relates) of improper collection, use and disclosure of HIV/AIDS-related personal information; and
• a review of the obligations imposed by the domestic Freedom of Information legislatiton, Protection of Privacy legislation, the Human Rights legislation and international conventions, other related legislation, and the domestic Charter of Rights and Freedoms or related constitutional provisions.

The education program should incorporate sound principles of privacy protection and ensure the adequate protection of HIV/AIDS-related personal information. Employees should also be made aware of the possible adverse consequences resulting from the improper collection, use or disclosure of HIV/AIDS-related personal information.

Treatment of Volunteered Information

Simply because an employee volunteers information that he or she has taken an HIV antibody test, information about test results, sexual orientation or other HIV/AIDS-related personal information, should not justify the recording and/or retaining of such information by an institution.

We suggest that volunteered information should be retained only where it meets some criteria relating to the collection of personal information. To qualify for retention, the volunteered information should satisfy at least one of the following three criteria:

• retention must be expressly authorized by law or statute;
• retention must be necessary for the purposes of law enforcement; or
• retention must be necessary to the proper administration of a lawfully authorized activity.

An employee might volunteer HIV/AIDS-related personal information to a superior to explain absences from work or to request counselling in these circumstances. The employer should refer the person to appropriate medical or counselling services. The employer may choose to keep a record of this exchange, however, no reference should be made to any HIV/AIDS-related personal information. It is sufficient to record that the employee discussed a health-related issue, and that the employee was directed to an appropriate source of help. There is simply no need for an employer to retain specific HIV/AIDS-related personal information volunteered by an employee.

An employee may also volunteer HIV/AIDS-related personal information to suggest that he or she is unsuitable for a given type of work. This could occur, for example, if the employee was required to travel to a country that could not provide adequate medical care in case of subsequent illness. In such situations, the employer should simply refer the employee to a physician. The physician could advise the employer that the employee is not suited to undertake certain types of assignments for unspecified health reasons. The retention of any HIV/AIDS-related personal information by the employer is both unnecessary and unjustified in these circumstances.

Only the above information need be recorded by the employer. (The physician, whether employed by government or in private practice, would be justified in recording HIV/AIDS-related personal information volunteered by the patient.)

Anyone receiving HIV/AIDS-related personal information in the course of employment should use extreme caution in order to prevent disclosure to other workers.

Currentness and Accuracy of Information

Employers relying on HIV/AIDS-related personal information must remain aware of the limitations on the use of test results. Primarily, they must be wary of using negative test results that may be outdated. The more outdated these negative results, the greater the likelihood that the person will no longer be seronegative. Employers must also remain aware of the other deficiencies in findings of seronegativity or seropositivity (especially seronegativity) that may make it risky to rely on certain test results to make decisions.

Workplace Health and Safety Law

Contents of Workplace Health and Safety Law

Contents of this subject matter include:

• Introduction and background
• Common law remedies – contract and negligence
• Work, Health and Safety legislation
• Workers’ compensation
• Anti-discrimination in the workplace