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

The argument that individuals within the workplace have a right to know the HIV status of the individuals they are working with has created additional stresses on the individual living with HIV and the possibility of such an official course of action especially by a public body or agent of the state could be deemed as a human rights violation. A just society according to Rawles would be created under a “veil of ignorance”, whereby law makers and individuals who aid in the ordering of society should perform their task under a “veil” hiding all personal characteristics, social, economic and political hierarchies to expose only an objective balance of benefits and compromises for all individuals in society to ensure that each individual should be treated in a fair manner. In a just society all individuals within the work environment would be treated equally and would not be made subjected to the discrimination and stigmatization of others, as the law makers would seek to make laws that balance the two opposing views on privacy to ensure that they are not arbitrarily depriving individuals of their implied yet protected right to human dignity.

The relevant question now arises – what moral justification could be found for the discrimination against HIV infected persons? In answering this question it has to be noted that some countries in the Caribbean have anti discriminatory laws[11]as discussed before but no law says that an HIV- positive person cannot be fired, or that a doctor cannot refuse to treat an HIV – positive patient. Existing laws merely prohibit an employer from denying a job or a healthcare provider from refusing treatment because a person is infected with HIV. The law places the burden on the HIV – positive person to prove discriminatory intent and the discrimination is often much more subtle, and therefore more difficult to prove. And once an employer has offered a non-discriminatory reason for the termination or other adverse employment action, the law puts the burden on the employee to prove that the “legitimate business reason” offered by the employer is a “pretext”, and that the real reason for the adverse action was his or her HIV status.

The duty of the state is to protect the rights of all its citizens but the protection by the state is dependent on several factors. If the Employer of an HIV infected person perceives and has medical evidence that supports that there is a real and significant risk to the health and well being of others who work with HIV infected persons or to customers. And if the HIV status affects the individuals’ capacity to do the job for which he or she has was hired.

Pre-employment Testing for HIV/AIDS:[12]

a.       Mandatory pre-employment testing is discriminatory and stigmatizes prospective employees and violates their human rights by excluding them and offends from productive employment for reason only of their health status. This constitutes unfair discrimination and offends the International Labour Organisation Conventions.

b.      A prospective employee is under no moral or legal obligation to inform the employer of his/her serostatus. The employer similarly has no moral or legal right to know the serostatus of the prospective employee, except in rare and exceptional circumstances where the nature of the engagement might expose co-workers and customers to demonstrable risk of infection.

c.       Mandatory Pre-employment testing for HIV/AIDS is unimportant and improper to the extent that the person’s production does not necessarily depend on his/her serostatus.

d.      Prospective employees should be given the normal medical tests of current fitness for work in terms of the national legislation and normal employment contract.

e.       Information regarding the serostatus of the employee as might come into the employer’s hands must not be disclosed without the employees’ express consent.

f.       HIV status should not be a factor in job status, promotion or transfer. Any change in job status should be based on existing criteria of equality of opportunity, merit and capacity to perform the work to a satisfactory standard.

g.      The employer must take all practical measures to protect employees living with HIV/AIDS from stigmatization

h.      The employer must provide safe and healthy working conditions for the employees.

i.        The employer should ensure that the employee have access to appropriate education and counseling facilities in relation to HIV/AIDS and on social security options

j.        No employee shall be dismissed merely on the basis of his/her serostatus, nor shall HIV/AIDS influence retrenchment procedures. In this respect, due regard would be had only to individual productivity and continued capability to do the job.

k.      No employee shall be denied compensation, pension benefits, health insurance or other forms of social security for reason of serostatus.

END NOTES

[1] Section 13 of the Jamaica Constitution and Section 4 of the Trinidad and Tobago Constitution speak to these fundamental rights

[2] National Advisory Committee on AIDS, Ministry of Health, Barbados

[3] In Jamaica, the AIDS Support Unit has been set up to basically act as a source whereby the victims of the HIV/AIDS disease can attain help in terms of purchasing medication and getting the necessary counseling.

[4] The United Nations report on AIDS has stated this affirmatively in their 1998 yearly edition

[5] ibid

[6] Ministry of Health, Barbados

[7] Chronic Disease Research Center

[8] Countries such as The Bahamas have now made protection for HIV victims a legislative right, here they have enshrined these rights in the Bahamas Employment Act 2001

[9] [1998] CA6 – QL 18, U.S Court of Appeal

[10] Jamaica Constitution, Chapter3 and section 50

[11] Bahamas Employment Act 2001, St. Lucia Draft code deal directly with Discrimination against HIV infected persons.

[12] Information got from “Development in the Law of Wrongful dismissal in the Commonwealth Caribbean.” – Rahim Bacchus, CLR vol1 1991

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