Living With HIV

What We Do

INFORMATION

SUPPORT

SUPPORT FOR WOMEN

FIND OUT MORE

Employment

Your Rights

Just over half (51.2%) of people living with HIV in Australia report being currently employed, with twice as many in full-time work than those in part-time work.

Employment status of people with HIV

('HIV Futures Five' research Oct 2006).

Work full-time 34.1%
Work part-time 17.1%
Not working/Retired 19.8%
Unemployed 10.7%
Student 4.2%
Home duties 3.3%
Other 10.8%

Many colleagues at work will be flexible, understanding and supportive. However, some may not. Some people may deliberately treat you unfairly. Others may just not understand.

If you feel your rights at work have been challenged by employers, colleagues or customers and you have been discriminated against, you have the right to demand fair treatment and to seek compensation.

There are legal services specifically to support you. This chapter highlights some of the key issues that may face people with HIV at work. It also covers what you can do if things start to go wrong, as well as information about the HIV/AIDS Legal Centre (HALC), which exists to support people with HIV.

Employment, disclosure, anti-discrimination and privacy
Occupations where disclosure may be required
Where to get legal help
More info

Employment, disclosure, anti-discrimination and privacy for people with HIV

Employment continues to present challenges to people living with HIV. While there are financial, emotional and social benefits to being employed, dealing with the effects of intermittent illness and treatment-related side-effects and the need for employer flexibility around time away from work, can make getting and keeping a job more difficult. There is also the management of HIV disclosure at work. You need to be prepared for these potential challenges, stay informed and make good decisions if problems arise.

Just over half (51.6%) of people living with HIV in Australia who are employed report stopping work at some point for reasons related to HIV. Some stopped work more than once. The most common reasons were poor health and diminished energy levels, although stress, depression and anxiety also played important roles in these decisions.

Periods of illness, side-effects and the additional stress of living with HIV can impact on work and may require negotiation and flexibility around work regimes. Although it is reasonable for an employer to ask why these adjustments are required, you need to carefully consider the possible consequences of disclosing your HIV status before making a decision. If you require adjustments to your work regime, you could for instance say you have a chronic health condition and talk about the sort of work adjustments you may need without saying you have HIV.

It is advisable to think carefully before making any disclosure at work. Once the information is 'out' - there is little the law can effectively do to protect the spread of information and compensation is usually inadequate. If you are in any doubt, seek legal advice by contacting the HIV/AIDS Legal Centre (see contact information at the end of this chapter).

The law and employment
The legal protections and requirements for HIV disclosure, discrimination and privacy are defined by the following Acts:

Occupation-specific regulation
The state and federal anti-discrimination Acts
Privacy legislation.
Occupational Health and Safety Act
Disclosure

There are very few employment situations where you are required to disclose your HIV status. There are also very few effective protections once disclosure has been made, despite many companies and organisations having good anti-discrimination policies and supportive work environments. Workers should think carefully however, before disclosing their HIV status, particularly if they are concerned about their privacy.

Disclosure in employment: who has to disclose HIV & who does not?
People with HIV usually do not have to disclose their HIV status to their employer. There are two exceptions to this rule.

Where it is required by law or regulation, and/or
Where there is a foreseeable risk of transmission of HIV to another person in the workplace

There are two occupations where disclosure of HIV status by workers is required by law.

Some health care workers (under very specific and rare circumstances: e.g. health care workers performing exposure prone procedures (EPPs) - see definition of EPPs below)
Members of the Defence Forces

These specific occupations are dealt with in more detail in the section 'Occupations where disclosure may be required' - below. Apart from these particular occupations and circumstances, you do not have to disclose your HIV status in the work place.

Anti-discrimination
The Anti-discrimination Act (NSW) and the Disability Discrimination Act (Commonwealth of Australia) make it unlawful to discriminate against people living with HIV in the following places or circumstances:

In most types of employment - when you apply for a job, at any time during your employment, or when you leave a job. If you can do the job safely and effectively, then you must not be discriminated against. Employers have a legal duty to provide you with any special facilities or services you need to help you do the job, as long as it won't cause them "unjustifiable hardship" to do this.
When you get, or try to get, most types of goods or services - for example, from shops, doctors, hospitals, pubs and entertainment places, banks, lawyers, government departments, local councils
When you rent or try to rent accommodation - for example, a unit, house, commercial premises, hotel or motel room, or caravan. (There is an exemption to the Act for group houses where the landlord or their near relative lives on the premises and where six or fewer people share accommodation)
When you apply to get into, or are studying in, any state institution - university, college, TAFE, government school
When you enter, join or get services from a registered club - a registered club includes any club that sells alcohol or has gambling machines.

These Acts provide protection against forced disclosure in the workplace, where it is unnecessary (other than the two specific circumstances mentioned above). If you were forced to disclose your HIV status in one of the above areas, you may have legal rights arising from these Acts which provide protection against forced disclosure.

Discrimination in employment

Discrimination in employment is allowed where a person with HIV is unable to perform the inherent requirements (core requirements of the job as defined in the specific job description), and where no reasonable accommodation can be made to allow them to perform those inherent requirements.

For example: John works for a financial institution with flexible work hour arrangements. He discloses his HIV status to his employer. After routine tests which reveal elevated blood pressure and blood fats, John's GP suggests a regular exercise program. John wants to use a particular gym. The gym is only open at the same time as when he's at work (nine to five). John seeks permission from his employer to vary his working hours (eight to four) so he can attend the gym. This request (if granted) would be a reasonable accommodation of the inherent job requirements by John's employer, because John has flexible working hours.

Most occupations do not have inherent requirements which would require disclosure of HIV status, or for which HIV status would be relevant. Therefore requiring disclosure would in most instances be discriminatory in itself.

Privacy

\Where one does disclose their HIV status to their employer, it is not always protected by the various Privacy Acts, state and federal. Mostly, disclosure of HIV status would come into the definition of health information and therefore under the provisions of the Health Records and Information Privacy Act (NSW) (HRIPA). In particular, employers with annual turnover of less that three million dollars who comply with the definition of a small business operator are not covered by the Health Records and Information Privacy Act. This means that a worker's disclosure of their HIV status to such an employer is unlikely to be protected by Privacy laws.

For example: Helen is employed by a small suburban cake shop. She feels comfortable with her employer and discloses her HIV status. Her employer subsequently sells the cake shop to someone else who discloses Helen's status to fellow workers and customers. Helen has no recourse to this breach of privacy because the annual turnover of the small business is less than three million dollars per year.

If a worker does disclose their HIV status to their employer, and that information is protected by the Privacy Act, state or federal, then there is legal recourse for improper use or disclosure of that information. The Privacy Acts provide mechanisms for dealing with complaints about privacy breaches, and may provide for some compensation. The compensatory payments however have generally been low. Legal orders can be made preventing further improper privacy breaches, but for most people, these remedies are little comfort after a privacy breach. Once the damage is done with regards to privacy, there is no real way to fix the damage or adequately compensate you.

Occupational Health and Safety (OH&S) requires that all workers should be able to perform their work, safely and without risk to others at the workplace. Employers have a duty under the OH&S Act (NSW) to as far as reasonably practicable identify foreseeable hazards or risks in the workplace, and take reasonable steps to eliminate or control those risks.

In most occupations and workplaces there isn't any reasonably foreseeable risk of transmission of HIV from a HIV infected worker. Nevertheless, all workplaces should have clear infection control procedures, education for all workers on OH&S requirements as well as procedures and confidential OH&S reporting and (where appropriate) management procedures. Organisations are required under OH&S legislation to ensure all staff are trained in and aware of risk control procedures (this may include injury and emergency infection risk). These procedures prevent the risk of infection and therefore negate the need to disclose HIV status.

Employees have a duty under the OH&S Act (NSW) to take reasonable care for the health and safety of people who are at the employee's place of work and who may be affected by the employee's acts or omissions at work. They also have a duty to comply with the Act and Regulations providing for occupational health and safety.

For example: if an employee with HIV has an accident and blood is spilt, the employee may choose to clean up his/her blood. If the employee is unconscious and unable to clean up his/her blood, standard infection control procedures would be instigated.

Occupations where disclosure may be required

A. Health care workers

Health care workers are generally not required to disclose their HIV status to their employer or patients, except in very specific and defined circumstances. These circumstances are where the worker is performing exposure prone procedures (EPPs). EPPs are very specific and particular procedures:

Those procedures where there is potential for contact between the skin (usually finger or thumb) of the health care worker and sharp surgical instruments, needles or sharp tissues (splinters/pieces of bone/tooth) in body cavities or in poorly visualised or confined body sites including the mouth.

Details of the procedures and provisions for health care workers are provided in the NSW Health policy directive HIV, Hepatitis B or Hepatitis C - Health Care Workers Infected

Health care workers in New South Wales who perform exposure prone procedures (EPPs) are required to know their blood-borne virus status. A health care worker who is either hepatitis C PCR-positive or HIV-positive or hepatitis B antigen-positive or hepatitis B DNA-positive, must not perform exposure prone procedures.

If uniform infection control procedures are followed, the risk in health care - of transmission from workers to patients - is so low that only a few situations occur where disclosure of HIV or hepatitis status is required.

As there are very few occupations where risk of transmission would be significant, the need for workers to disclose their HIV status to their employer for safety reasons is remote or negligible.

B. Members of the Armed Services

All members of the Armed Services are required to undergo testing for HIV status. The High Court of Australia decided that soldiers need to be able to bleed on the field of combat without the risk of infecting their fellow soldiers. Therefore the Army can reasonably discriminate against soldiers with HIV and dismiss them. This example illustrates how the risk of transmission must be foreseeable and quite high before disclosure of HIV status is legally required. Such risks would be very unusual in most occupations.

Conclusion

There are very few circumstances under which employees are required to disclose their HIV status, but there are few effective protections once disclosure has been made. Unless you are working as a surgeon or a health care worker where your are performing exposure prone procedures or a member of the Armed Services, you are not legally obliged to disclose your HIV status. If in doubt, consult your solicitor or HALC.

Where to get help

HIV/AIDS Legal Centre (HALC)

This is a free legal service available to anyone with an HIV/AIDS related legal matter. HALC observes strict standards of confidentiality and any information that you provide is always kept strictly confidential.

Email: halc@halc.org.au

NSW Anti-discrimination Board (ADB)

The ADB investigates and conciliates complaints of discrimination, harassment and vilification. It informs and educates the people of NSW, employers and service providers about their rights and responsibilities under anti-discrimination law.

Web: www.lawlink.nsw.gov.au/adb

Human Rights and Equal Opportunity Commission (HREOC)

The goal of HREOC is to foster greater understanding and protection of human rights in Australia and to address the human rights concerns of a broad range of individuals and groups.

Web: www.hreoc.gov.au

Law Link

Extensive information on the legal rights of gay men and lesbians is featured on Law Link, the New South Wales government website on law and justice. It does not address HIV/AIDS issues directly, but concentrates on GLBT issues, however it remains the case that the majority of people in NSW living with HIV are gay men and they may experience discrimination as gay men.

Web: www.safetypartnership.nsw.gov.au

Unions

Unions will have staff to offer confidential support around any concerns about your treatment at work. They may also be able to offer you representation in any dealings with employers and/or legal proceedings. If you are a member of a union, speak to your union contact as soon as possible.

Your Lawyer

If you already have a lawyer contact them first to ask their advice before speaking to your employer. Lawyers will generally charge for any services so be sure to ask in advance about any potential charges.