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Date:
2012.10.04

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THE EMPLOYERS' EDGE

HIV in the Workplace: What you should know

Finding out that one of your employees has an HIV-related medical condition or that they are allegedly HIV-positive is likely to be an uneasy experience if you are not educated on this issue.  Uneasiness, however, will only be the start of your problems if you act on the information inappropriately and without merit.  The following information ought to help you understand the disease, the law and the importance of handling this delicate situation properly.

Medical conditions associated with HIV (Human Immunodeficiency Virus) are recognized as disabilities under the Ontario Human Rights Code (“Code”).  The Code provides for equal treatment without discrimination on the basis of disability in various contexts including employment.  Further, the Code not only protects individuals with the virus from discrimination but it also serves to protect individuals perceived to have HIV-related medical conditions, including those that do not show symptoms.  In fact, the Ontario Human Rights Tribunal case of Giguere v. Popeye Restaurants (“Giguere) made clear that it was a violation of the Code to dismiss a waitress where the employer’s issue with the employee related back to her common law spouse being HIV-positive. 

Giguere also explains that an employer’s actions can be discriminatory even if the sole or primary reason for the action is not discriminatory.  For example, even if there are legitimate reasons for dismissing or relocating an employee, if one of the factors or considerations of the employer was discriminatory the action taken will be considered a violation of the Code.  Further, it was no defence to the claim in Giguere that customers preferred not to be served by an individual that they suspected had or would be likely to get HIV.  Essentially, employers are not entitled to discriminate on a ground prescribed by the Code simply because they feel business will suffer because of the views of customers.  The Tribunal commented that “economic interests and rights do not trump human rights, unless there is a specific exemption in the legislation.”

An employer is only entitled to discriminate on an enumerated Code ground like disability if the employer establishes that the discrimination is a reasonable bona fide occupational requirement (“BFOR”).  For an action taken by the employer to be considered an appropriate BFOR it must:

1) be adopted for a purpose rationally connected to the performance of the job;

2) be adopted for an honest and good faith belief that it was necessary for the fulfillment of the legitimate work purpose; and

3) be reasonably necessary to the accomplishment of that purpose such that employer would face undue hardship if alternative accommodation was provided.

While safety concerns can serve as an adequate BFOR in disability cases they often do not pass muster in HIV-related cases because an employer’s belief that there is risk is not enough on its own to pass the legal test, there must be substantiated reasons for concern.

The 1989 case of Fontaine v. Canada Pacific Ltd. (“Fontaine”) sums up the medical communities continued view regarding safety risks in HIV cases.  Specifically, the Canadian Human Rights Tribunal recounted and accepted the following evidence given by a medical doctor specializing in HIV and AIDS:

“[T]here has not been one single reported case in Canada of transmission of the infection by direct contact with blood arising from casual contact in the workplace. That is so because the virus is extremely fragile and although transmission through casual social contact may theoretically be possible, it is extremely unlikely because such activity does not ordinarily involve the exchange of bodily fluids. There is no reported case of transmission of HIV from one member of a family to another in a household context where there has been a sharing of food, kitchen utensils and toilet facilities. Neither has there been any reported case of infection in the workplace. There is no evidence of transmission in food or from contact with blood as a result of cuts in the skin. There should be no restriction on people in the food processing industry. Accordingly, there is no basis for fear among co-workers or customers. His conclusion is that from a practical point of view, the risk is virtually non-existent. An individual in the food processing business need not take precautions beyond those that one would normally take to prevent the spread of other common infections that are found in bodily fluids.”

Similar to Fontaine, the Adjudicator in the 2009 case of Harvey v. Woodward Training Centre Inc. found that the theoretical possibility of transferring HIV in the workplace was not enough of a risk to be a valid concern.   Thus, it should almost go without saying that with the risk being as low as it is, or “virtually non-existent”, it is quite inappropriate to enquire into an employee’s HIV status or to request that they undergo testing.

Instead, the employer out ought to take “universal precautions” which lessen the possibility of any infection.  Essentially, these precautions are regular risk reduction measures that are in place for all employees, for example, the proper handling of sharp items and the use of barriers, such as gloves, to protect from bodily fluid.

Consider contacting counsel at CCP if you have further questions regarding HIV in the workplace, the appropriate way to deal with disabilities, the management of privacy issues and/or ensuring the workplace is safe.  Lastly, remember;

“[a] society is judged by how it responds to those in greatest need. A tragedy such as the HIV epidemic brings a society face to face with the core of its established values, and offers an opportunity for the reaffirmation of compassion, justice and dignity.”

-          James D. Watkins, Chair of the Presidential Committee on the Human Immunodeficiency Virus Report (1988)

* To read the Ontario Human Rights Commission's Policy on HIV/AIDS-related discrimination click HERE

Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.

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