Employees’ dismissal because of AIDS — an act of injustice by the employer

By Jason Shettleworth

Introduction – What Exactly is (HIV/AIDS) and how does the Disease affect the Workplace?

AIDS or Acquired Immune Deficiency Syndrome is the eventual outcome of an infection with HIV- the Human Immuno-deficiency Virus. AIDS is not transmitted directly from one person to another through casual contact. Notwithstanding the foregoing, persons living with AIDS are subject to stigmatization and discrimination in the work place. Consequently persons living with HIV/AIDS are often deprived of many of the basic rights which others take for granted.

The discrimination which HIV infected persons face takes the form of termination of employment and deprivation of benefits extended to other employees. They are deprived of their right to work when they are arbitrarily dismissed; of their privacy when their status is publicly disclosed and used as a weapon against them. These rights that they are deprived of, are rights enshrined in the fundamental rights provisions of many  Caribbean countries which speak to the right to life, liberty, security, right to work, protection of law, and right to privacy.[1] The constitution of most countries postulates these ideals, however, persons who are known or suspected of living with HIV are often denied these rights.

The estimated number of persons living with AIDS worldwide is over 42 million, and nine out of every ten are adults in their reproductive prime. Most of the persons infected with HIV virus in the Caribbean are within the working cohort of the population between ages of 15-49 years of age. It is also the leading cause of death of persons between the ages of 25 and 44 years.[2] AIDS therefore has become a critical workplace issue not only because it affects labour and productivity, but because it has affected the scope of development planning and also because the workplace has a vital role to play in wider struggle to limit the spread and effects of the epidemic.

There is still no cure for HIV/AIDS, but prevention does not work. Stigmatization against people with HIV threatens the fundamental principles and rights at work, and undermines efforts for prevention and care. Today, people with HIV are living healthier lives, and are able to continue within the workforce for years without getting ill. In Barbados for example the Government provides medical attention and the anti retro-virals needed to boost the immune system at a minimal cost and free for individuals who may not be able to afford them. Although this country is the exception rather than the norm, most Caribbean Government along with Non-governmental Organizations are significantly improving the standard of life and indeed the very possibility of living for persons who previously would have been seen as “walking dead”, “not worth keeping on the job[3]” it therefore becomes important that they know their rights and responsibilities in the workplace and that these rights be protected rather than wait until a crisis occurs.

It should be noted at this juncture; that it has been clinically proven that one cannot get AIDS from casual contact.[4] Contact in the workplace such as the shaking of hands, coughing, sneezing are not found to have caused the spread of the disease. HIV cannot be contracted from an HIV positive employee using the toilets, telephones and other office machinery that others have used in the workplace, therefore, is as a result lack of proper education and thus, this should be one of the essential issues that is undertaken by managers in any organization that hires persons that are may someday become ill[5].

Discrimination and Stigmatization, like salt in a wound, further compound the economic problems relating to HIV positive persons. When persons are ousted from the workplace when they are healthy, it causes additional economic burdens on the workplace, which have to re-advertise for replacements, pay additional cost to train new employees and possibly to provide at least minimal care for the HIV infected person who is no longer allowed to earn for themselves and consequently become a source of expense. This expense is unnecessary when the person could have taken care of themselves if given the opportunity to earn a living.

The Caribbean in general has single parent households headed by a woman as a common feature. In Barbados for example where women are already economically, culturally and socially disadvantaged, being dismissed from the workplace leads to deprivation of their dignity, their source of sustenance in their most dire need for preservation of their life and leads to rapid degeneration. The male to female ratio in Barbados for those infected is 3-1. If these women are ousted from the workplace they are not the only ones to suffer. Their children, for whom they are no longer able to care, may have to become wards of the state (at end of 2001 Barbados had an estimated 190 orphans).[6] It follows that if allowed to stay on the job, despite their HIV status, individuals may also be able to work for many years, support themselves and their families, receive employee benefits including health care and be able to positively contribute to the organization of which they are apart and possibly put aside some savings to take better care of themselves when they get ill.

On the other hand one has to examine the argument that even if there was no termination, a person with HIV remains and can also be an additional cost burden for the organization; as sick leave and other absenteeism increases and work performance may decline as morbidity begins. This also increases the uses of health benefits which in turn increase insurance premiums. The voluntary resignation or medical boarding or death of the ill employee also could lead to loss of training investments. The ability of other employees to concentrate on their work may be compromised by frequent deaths of employees and the additional costs to train new employees.[7]

Statutes and legislation in the Caribbean that seeks to Protect Employees’ (HIV/AIDS) Victims Rights

Few countries in the Commonwealth Caribbean have general laws that deal with discriminations against persons with HIV and fewer still with statutes directly related to termination of these persons by the work place.[8] Persons living with HIV are often faced with the worst type of discrimination, which renders the workplace an extremely hostile environment from which they are ousted through use of both direct and unmerited dismissal or through psychological warfare that results in many HIV infected persons hurriedly leaving out of fear and humiliation.

Worldwide there are few states which seek to protect the rights of individuals who are discriminated against directly. In the United States, for example these individuals are classified as Disabled and get protection under the American Disability Act. Within the Caribbean there are a few territories which have identified the injustice of the employers against these individuals and have enacted legislation to deal with such concerns.

The Employment Act 2001 of the Bahamas, s.7 of the Draft Labour Code of St. Lucia and the International Labour Organizations Disabled Persons Convention which Caribbean States, such as Jamaica and Trinidad are parties to, are the only laws currently in existence in the Caribbean to protect the rights of the HIV infected individuals in the workplace.


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