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Debate: Compulsory disclosure of HIV infection to employers

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Should HIV positive workers have to tell their employers of their status?

Background and context

The HIV pandemic is impacting on all aspects of society, and exerting an ever-greater influence on the economic and employment worlds. If employees were compelled to tell their employers of their HIV status, would the situation be improved?

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Argument #2

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Yes

It’s in the interests of the HIV positive employee. Right now, prejudiced employers can claim that they didn’t know their employer had HIV when they fired him, so they must have been acting on other grounds. The employee then has to try and prove that they did know, which can be very hard. Furthermore, once informed the employer can reasonably be expected to display a minimum level of understanding and compassion to the employee.

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No

It’s not as if the employee can’t tell their employer at present – it’s that he or she could, but doesn’t want to. They get to decide what’s in their best interests (including what’s likely at trial) – and sadly, that will often be keeping quiet about his condition.

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Argument #1

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Yes

It’s in the interests of employers. A long, incurable and debilitating condition has stricken one of their employees. They will have to make provision for possible sickness cover and replacement workers, potentially for medical and/or retirement costs. The employee’s productivity might be reduced to the point at which their continued employment is no longer viable. If things are made difficult for employers with HIV positive workers, then they are less likely in the future to employ people who (they suspect) are HIV positive. Employers must be listened to in this debate – in many HIV-stricken countries, they’re the last thing between a semi-functioning society and complete economic and social collapse. Traditional rights ideas such as concerns about privacy of medical records are less important than the benefit to society of being able to cope with the unique problem of HIV more effectively.

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No

Employers have no right to know. This is an arena into which the state has no right to intrude, or to compel intrusion by others. Employers will know if they employee’s work is satisfactory or unsatisfactory – what more do they need to know than that? If employers find out, they might dismiss workers – which is exactly why many employees don’t want to tell them. If workers are forced to disclose the fact that they have HIV, the merit principle will go out the window. Even if not dismissed, their prospects for promotion will be shattered – because of prejudice, or the perception that their career has in any meaningful sense been ‘finished’ by their condition (which is often not the case as sufferers can work and lead fulfilling lives after diagnosis). Even if not fired and career advancement doesn’t suffer, prejudice from co-workers is likely. From harassment to reluctance to associate or interact with the employee, this is something the employee knows he might face. He has a right to decide for himself whether or not to make himself open to that. Managers may promise, or be bound, not to disclose such information to other workers – but how likely is enforcement of such an undertaking? For these reasons, even problems with huge HIV problems like South Africa haven’t adopted this policy.

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Argument #3

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Yes

It’s in the interests of other workers. The possibility of transmission is real and one they have a right to know about so as to be able to guard against it. This is particularly true of healthworkers (e.g. doctors, nurses, dentists, midwives, paramedics, etc) who should have both a moral and a legal obligation to disclose if they are HIV-positive. Even outside the medical field industrial accidents may expose employees to risk. Employers have a duty to protect their workforce.

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No

Working with someone with HIV does not put you at risk. Suggesting that it does serves to perpetuate the myths that do such harm to HIV-positive people who already suffer too much. To clarify: AIDS cannot be transmitted through external, intact skin. It cannot pass through the air like cold germs. Sweat, urine, tears and saliva cannot transmit HIV. Whilst blood, seminal fluid, vaginal fluid and breast milk can, how often are such fluids encountered at work? Even if they are, and such fluids are HIV positive, they must enter another’s body through mucus membranes, directly into the bloodstream (e.g. via injection), or from mother to child via breastfeeding or in the womb. What workplaces risk such transferral?

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Argument #4

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Yes

Employers can be trusted to use this information responsibly. They are already used to keeping sensitive information (e.g. about salaries, annual reports, or employees' addresses and telephone numbers) confidential. Nor is it in their interest to open themselves up to lawsuits for bullying and discrimination in the workplace. There is no reason to assume that businesses will be more likely to leak information about someone's HIV status than doctors or hospitals, who already have such information.

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No

This measure could be actively dangerous for HIV-positive workers. Ignorance causes so much bad behaviour towards AIDS sufferers and HIV-positive men and women. The proposition seeks to institutionalise and widen the shunning and ill-treatment of HIV-positive workers that already happens when people find out about their condition. Even if not motivated by prejudice, co-workers will often take excessive precautions which are medically unnecessary and inflame unsubstantiated fears of casual transmission. In addition, many people who are HIV-positive choose not to reveal their condition for fear of violent reactions to them from their families and the rest of society. If disclosure to an employer is compulsory, then the news will inevitably leak out to the wider community. In effect, they will lose any right of privacy completely.

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Argument #5

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Yes

Businesses ought to take a responsible and active position on HIV. The issue isn’t going to go away. Successful programs designed to help HIV-positive employees remain in the workplace for as long as they want to do so should be developed. Procedures for treating personnel with fairness and dignity must be put in place. The potential fears and prejudices of other employees must be combated. The beginning of that process is ensuring they know about the problem and, crucially, the scale of it. Without knowledge of the numbers involved, employers may put in place inadequate medical and pensions arrangements that will ultimately prove inadequate.

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No

All these worthwhile aims can be achieved without employees having to tell their employers of their HIV status on an involuntary basis. The scale of the problem can be easily inferred from natiional and regional medical statistics. For example, mining companies in South Africa have put in place excellent programmes to combat prejudice and treat sick employees without compulsory disclosure.

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Argument #6

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Yes

Some very few people may do this and it’s the job of the government to attempt to educate people about the enormous dangers of doing so to minimise that. Nevertheless, most people will quite properly prioritise their lives and health over their job, which in any case legislation should safeguard by stopping unfair dismissal.

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No

The requirement to disclose their condition if known would be a disincentive to get tested in the first place. This is especially the case for many people in places like sub-Saharan Africa, but also applies widely elsewhere. Their job is so important to them (since there’s no safety net to speak of if they lose it) that they’d prefer to go in ignorance of their HIV status than find out and risk being fired for it. The medical repercussions of that are obvious.

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