"The most significant obstacle
to progress against the AIDS epidemic is the threat of
Louis Ndaba, Equality and Human Rights
Co-ordination Branch, ILO Geneva
The significance of HIV/AIDS in the context of
employment may be understood from two perspectives.
The first, a rights perspective, focuses on the fact
that people living with HIV/AIDS face discrimination
in most spheres of their lives, including the
workplace. This has implications on the rights to life
and equality. The second looks at the economic costs
of the epidemic to the industry in specific and the
economy in general. This issue of Positive Dialogue
deals with some issues related to concerns of
employers and employees and the workplace implications
of HIV/AIDS. This is an area that has been largely
ignored, perhaps because the workplace is not
generally associated with behaviours that lead to the
transmission of HIV.
The population most affected by HIV/AIDS is between
the ages of 20 and 40, which means that the working
age population is the worst affected. Being positive
at an economically productive stage of one's life
gives rise to an individual's emotional and
psychological trauma as well as problems at the
workplace. HIV/AIDS is, therefore, a threat to the
livelihoods of millions of people and the welfare of
their families. Similarly, the cost of HIV/AIDS on
industry and the economy, owing to its impact on the
workforce, are to be recognised and addressed.
By the mid-90s HIV/AIDS started appearing on the
shop floor in industries all over the country. By the
late nineties, industry in India had to face up to the
fact that a comprehensive strategy was necessary to
deal with the implications of the epidemic. Today,
interventions, though not fully developed, are in
place in the public as well as the private sector and
are working towards awareness and support systems for
people affected by HIV/AIDS.
The legal and ethical issues relevant to the
context of the workplace and to these interventions
are unclear and untested. Can an employer, for
example, legitimately require HIV testing of a
prospective or current employee? Does an employer have
the right to personal information that the employee
may not want to disclose? Does the employee have any
legitimate control over the disclosure of medical
HIV-RELATED DISCRIMINATION IN THE WORKPLACE
Discrimination can be broadly defined as the
treatment of one person less favourably than the other
in the same or comparable circumstances on the basis
of a characteristic that is not immediately relevant
to the situation. Articles 14 and 16 of the
Constitution of India guarantee equality and provide
against discrimination in employment respectively.
Article 16 prohibits discrimination in public
employment on grounds of religion, caste, creed, sex,
colour etc. However, these rights are available
against the state and not against private employers.
As such, little can be done within the present legal
regime to prevent discrimination in the private
sector. That requires anti - discrimination
There is no specific employment law that provides
protection from discrimination to people living with
HIV/AIDS. Owing to a progressive judicial
pronouncement by the High Court of Bombay (MX v/s
ZY, AIR 1997 Bom 406), employees of the public
sector cannot be denied recruitment merely because of
their HIV positive status if they are otherwise
qualified and do not pose a substantial risk to
others. Moreover they cannot be discriminated on
account of their HIV positive status.
TESTING FOR HIV/AIDS
In the private sector there is no legal restriction
preventing employers from putting prospective as well
as existing employees through HIV/AIDS screening as
part of the assessment of fitness to work and to
refuse employment if the test is positive. A refusal
either to take the test or to allow the results to be
given to the employer may result in the
applicant/prospective employee not being offered a job
and having no form of legal redress. Fitness for the
job is a major criterion and as such people living
with HIV may find employment difficult to obtain. They
also have little protection against dismissal. In
general then, those who have developed HIV will be
subject to the provisions relating to dismissal on
grounds of ill health. Dismissal for reasons of
sickness will depend on the circumstances of the case.
For example, the length and regularity of absence from
work, the need to replace the employee because of the
position held within the organisation and the extent
to which the employee's absence has a negative impact
upon the business of the employer/organisation. Some
protection may, however, be sought under Labour Laws
relating to dismissal.
At the same time, mandatory testing is often
justified by the argument that once an employee tests
positive, special care and support could be provided
The principle of confidentiality comes into play
with the existence of a relationship of trust. (For
example, the relationship between a doctor and a
patient, an advocate and a client.)
Companies often provide health services to their
employees. In such circumstances, it is the company
doctor who is in a position to recognise HIV-related
conditions and perhaps the HIV status of an employee.
In normal circumstances, a doctor is constrained from
disclosing the HIV status of a patient, except in
certain circumstances. In a situation where the doctor
is an employee of the company, however, the nature of
the relationship between the patient and the doctor
would be structured by the relationship between the
employer and the doctor.
The legal relationship between an employer and
employee is based upon a contract of employment, that
determines the rights and duties/liabilities of both
parties. In the case of large set-ups the question
also arises as to who has the right to know the HIV
status of an employee and with what justifications. Is
it, for example, necessary for the head at the
shop-floor level to be informed, in the interest of
other workers? This question gains importance
especially in the context of work where there may be a
risk of transmission due to accidents.
This outline of HIV-related discrimination relates
to the private sector. For employees to be protected
it is important that employers and trade unions
promote confidentiality and prevent HIV/AIDS related
discrimination in employment. Since fundamental rights
are not enforceable against the private sector it
becomes imperative to introduce anti-discrimination
legislation to combat HIV/AIDS-discrimination in
On World AIDS Day, December 1, 1997, the Social
Welfare Committee of the Bombay Chamber of Commerce
and Industry organised a seminar and workshop,
'Towards Better Understanding of AIDS at the
Workplace' at Mumbai.
The seminar provided a forum for corporations to
voice their concerns and experiences regarding
HIV/AIDS and also provided them with Policy Guidelines
for HIV/AIDS. These policy guidelines conceived of a
training module designed to include:
§ Basic medical facts about HIV
infection, AIDS and its effects.
§ Information about how HIV spreads
and does not spread thereby dispelling to a large
extent myths and fears about the disease and it
§ Methods of preventing HIV
§ Universal workplace precautions and
safe practices recommended by WHO.
§ Information about the services,
monitoring and treatment options available to persons
§ Sexuality Education Programmes for
adolescent children of employees.
§ Condoms to be distributed to promote
safer sex practices.
§ Guarantee of complete confidentiality
at all times to be given to the employee. Breach of
confidentiality to be treated as a disciplinary
§ Non-discrimination against anyone who
is HIV positive or has AIDS during hiring, promotion,
transfer, job training etc.
§ Reporting of cases through proper
channels with utmost confidentiality and identity of
the employee being protected.
§ HIV/AIDS Testing for prospective as
well as existing employees to be voluntary and not
mandatory. Only those persons who would like to be
tested to be referred for testing. This should be
carried out after a competent person has counseled the
§ Pre-employment testing - though not
considered ethical, each company to decide for itself.
§ Universal Health Precautions, recommended
by WHO, should be followed at the workplace and
staff to be trained to deal with any situation where
they are likely to be exposed to blood or blood
products on the job, including rendering First-Aid to
§ Easy access to treatment, the cost of
which is to be borne by the company.
In March, 2000 an international conference on the
development and importance of Microbicides (substances
capable of reducing the transmission of sexually
transmitted pathogens when applied in either the
vagina or the rectum) in the prevention of HIV/AIDS,
was held at Washington DC.
The objectives of the conference were to open a
global dialogue to enhance knowledge about topical
microbicides, identify practical solutions for, and
gaps within, the current research and improve
understanding of the cultural, ethical and economic
obstacles toward development of a microbicide.
Research into development of microbicides for
prevention of HIV/AIDS, has, in the last few years,
come to the global forefront as policy makers,
researchers and activists have recognised the failure
of condoms and other traditional contraceptives in
being the only tools in preventing the spread of HIV.
One of the reasons for this has been the prevalent
imbalance in sexual relationships and the subordinate
status of the woman who is unable to negotiate with
her partner on the use of condoms. As a result there
has been a rising trend of HIV infection among women,
without any effective prevention strategies.
Recognising a similar trend in India, several
points of view were presented at the conference by
Indian researchers, policy makers and NGOs on
effective development of microbicides in India.
The First Phase of the National AIDS programme
focussed on HIV prevention through condom protection
and in high-risk groups. The Second Phase of the
programme accepts the high HIV prevalence in the
heterosexual population and the vulnerability of women
to HIV. However, its prevention strategies do not
fully address the gender imbalance in the sexual
relationship. The larger focus is still on promotion
of condoms and Mother to Child Transmission (MCT).
Only 3% of the National AIDS budget is allocated for
Research and Development (R&D). Development of
microbicides is on the R&D agenda.
However this will not be sufficient and it is upto
the pharma industries along with the government and
activists to take the issue further for it to have any
Employment is now emerging as a focal point of
debate in the HIV/AIDS context, especially since it
has become clear that the large number of persons
living with HIV/AIDS in India are those who are
employed or of employable age. It, therefore, becomes
imperative for employers and companies to evolve
policies that address this issue. With Indian economic
policy veering toward liberalisation in the last
decade, the private sector is rapidly creating the
largest employment base. How have private corporations
reacted to the issue of HIV/AIDS in relation to their
employees? To discuss this and other questions the
Lawyers Collective HIV/AIDS Unit spoke with Sandhya
Bhalla, Adviser, Confederation of Indian Industry.
Q:What exactly is the function of the CII and
what is its relationship with Indian industry?
The CII is a chamber of commerce about 3,800 direct
member companies and 10,000 associated members. It
functions as a think tank for member industries,
studies their needs and aids in policy making in
response to the same. The work of the CII is primarily
a service to industry and the initiatives and programs
are designed to meet the demands of industry.
Q:What has been the response of the CII
to the HIV/AIDS epidemic?
In 1995, when cases of HIV/AIDS appeared at the
shop floor level in various industries it became clear
that HIV/AIDS was an urgent issue. A task force was,
therefore, set up to evolve a strategy to deal with
HIV/AIDS. A base line study was conducted to
understand the organisational structure of industries,
what workers know about HIV/AIDS, what issues they
would like addressed, health-seeking patterns and
sexual health patterns of workers in the industry etc.
The study found, inter alia, that peer pressure is an
important factor in the sexual behaviour of men and is
linked to the prevalent constructs of masculinity and
a dominant alcohol culture; males having sex with
males were not identified in the study, possibly
because it is difficult to access information on such
type of sexual behaviour; men had extra-marital sex
because their sexual needs were not satisfied within
the marriage; due to the stigma attached to STDs men
sought health care for such problems far away from
their homes and workplace; quacks were consulted for
sex-linked diseases; women said that they had little
or no bargaining power in sexual practices and were
usually not in a position to insist that safer sex be
practised. Guidelines and handbooks were evolved out
of this study and in 1996-97 a pilot study was
conducted after which a comprehensive intervention
strategy to deal with HIV/AIDS has been put in place.
The intervention of the CII is focussed on providing
education and information on prevention of HIV/AIDS
and on nutrition and health care essential for people
living with HIV/AIDS and providing counselling, care
and support services to persons affected by HIV/AIDS.
Q:How does this initiative on HIV/AIDS
The focus of the intervention is on setting up
local programs at the company level. About 1700
companies have opted for such programs in
co-ordination with the CII as of April 2000. A small
number have established comprehensive and continuous
programs. Most have had programs twice or thrice times
in the last two years and a large number have had such
programs just once. The CII intervention is focussed
on setting up a system of information dissemination
that is then adapted by the individual company to
carry out according to its needs. The CII usually
carries out the first program, in collaboration with
agencies like local NGOs, NACO and State AIDS Control
Societies. The CII provides support to the company
wishing to conduct further programs.
Q:You mentioned care and support for
persons living with HIV/AIDS as a primary part of
CII's response. What programs have been set up in this
The CII has been instrumental in setting up income
generation schemes for people living with HIV/AIDS.
The member companies provide funding for production of
chalk, recycled waste paper and stationery. These
products are sold directly to companies providing such
support. Similar projects are on the anvil in cities
like Bangalore and Pune. We also work with the health
sector linked with industry. The primary objective of
this is to build a health care structure that has the
capacity to provide support to HIV positive persons.
Q:What has been the reaction/involvement
of Trade Unions to the programs? Have there been any
similar initiatives from the Trade Union movement?
The interventions are clearly supported by Trade
Unions. We have even been approached by trade unions
with requests and feedback on our programs. This is an
area where the management and the unions are working
together. However, we are not aware of any independent
initiatives from the trade union movement with respect
Q:Has there been any collaboration
between companies in conducting programs?
Some companies are getting together and conducting
programs. Doctors from different companies participate
in the health care initiatives of other companies and
There are similar collaborations between Medical
Associations and the Occupational Health Association.
Through these collaborations, private practitioners
and company doctors are being brought together.
Q:What is the nature of the
collaboration between private practitioners and
Since workers usually approach medical
professionals not connected with the company in cases
of sex-linked health problems, there is a need to
bring together these doctors and the health care
system provided by the company. If a person is HIV
positive, it is necessary that the company doctor know
about his status, in order to ensure proper care,
support and counselling. This is one of the objectives
of bringing the medical community together.
Q:How is such a disclosure made? What
about the right to confidentiality?
We respect the principle of confidentiality. At the
same time when a person takes sick leave, and has
approached a private practitioner instead of the
company health care system, he is generally required
to provide a medical certificate and papers. These
papers point out either the HIV status of the
individual or indicators that would lead to a
reasonable conclusion that a test is required. In such
circumstances, there is no point in focussing on
confidentiality. However, we feel that such a
disclosure should be only with the consent of the
Q:Is there any other disclosure made
once the company doctor has knowledge of a person's
HIV positive status?
Yes. The head of the shop floor, we feel, should
know if a person working under his supervision is HIV
positive. The company has the responsibility to
protect other workers from HIV/AIDS. There may be
circumstances where the nature of work done by an HIV
positive person may put others at risk of infection.
Accidents can always take place. As such, we feel that
the only two persons who should necessarily have
information about the HIV positive status of a worker
are the company doctor and the head of the shop floor.
Incidentally, NACO has agreed with this principle of
Q:What steps are to be taken once a
person is found to be HIV positive?
At the level of health care, further facilities are
to be provided to the individual. Secondly, the worker
is counselled to cope with the situation, and to
behave responsibly towards the persons he is sexually
active with. We counsel the person to notify his wife
with the objective of getting information across to
her and, in turn, counselling her to be tested as
Q:Has there been an attempt to monitor
the impact of the programmes?
Companies monitor the number of condoms picked up
on a regular basis. There has been a sharp rise in the
condoms picked up after awareness and sensitisation
programs have been conducted. The significance of this
rise is that condom usage is not primarily a form of
contraception in this context. Some big companies also
monitor STD prevalence amongst the workforce.
According to reports by these companies, there has
been a decrease of STD prevalence from 3% to about 1%
since HIV/AIDS interventions have been initiated.
Q:Have you encountered any instances of
discrimination on the basis of HIV status in the context
of the private sector?
The CII has not come across any case of
discrimination on the basis of HIV status. Even if
there are cases of discrimination, they have not come
to our notice.
Q:What about mandatory testing?
As far as pre-employment mandatory testing is
concerned, there is no evidence of such a practice in
the private sector. There is never any proof of
discrimination in terms of dismissal or of
pre-employment mandatory testing. We look at this as
an effect of the training and sensitisation sessions
conducted in these companies. As far as routine
check-ups are concerned, an HIV test is done only
where the symptoms are obvious. In such a case the
worker is counseled to have the test and only then is
the test done.
Q:Does the CII have a policy on
reasonable accommodation for HIV positive persons?
There has been just one case where an HIV positive
person working in the pantry of a company approached
the management requesting that he be shifted to
another department. This request was, apparently, to
avoid fear amongst his fellow workers. The management
granted the request. There are no other cases where
persons have been either removed or needed
accommodation elsewhere. As such, there has been no
need to draft a specific policy on this aspect.
Q:Are there any policies related to
compensation, medical insurance and appointments on
compassionate grounds in cases related to HIV/AIDS? Is
there any differential treatment by companies towards
cases of HIV as against deaths not linked to HIV/AIDS?
There is no difference between the liabilities and
obligations of a company to pay compensation where the
death is linked to HIV/AIDS. The applicable laws, i.e.
the Workmen's Compensation Act and the Employees'
State Insurance Act prescribe the entire liability and
obligation of the company. The relevant amount of
compensation is always paid to the family, but the
provision of appointment on compassionate grounds
depends purely on the company and the terms of the
employment contract. There has been no initiative by
the CII to formulate a specific policy in this regard.
Q:Are there any new initiatives
regarding HIV/AIDS coming up under the aegis of the
A new idea, which is in the process of being
concretised, focuses on awareness programs for
truckers and dealers linked with the Indian Oil
Company. We recognise that this is a group that is at
a high risk of transmission and that there needs to be
some intervention in this regard.
Contributions from Rekha Miranda, Akshay Khanna
& Anju Jain
Campaign Against the Suspension of
People Living with HIV/AIDS Right to
20th February, 2000- A seminar was
organised by Prayas, Pune and Jankalyan Bank, Pune in
collaboration with Lawyers Collective HIV/AIDS Unit,
on the Right to Marry of HIV infected individuals. The
meeting was presided by Dr. Rajendra Jathar, President
Indian Medical Association (IMA). The speakers for the
seminar were Mr. Anand Grover, Director, Lawyers
Collective HIV/AIDS Unit, Dr. Dilip Wani, Mr. Ajit
Kulkarni, Dr. Raman Gangakhedkar, Dr. Sanjay Pujari
and Ms. Manisha Gupte. The seminar was well attended
by lawyers, NGOs, citizens and members of the IMA.
25th February, 2000 - A public
meeting was organised by Prajaak, Calcutta to create
awareness about the suspended Right of People living
with HIV/AIDS to Marry. The meeting was addressed by
Mr. Anand Grover, Director, Lawyers Collective
HIV/AIDS Unit, Mr Mandal, Advocate and Mr. Trilochan
Singh, Director, West Bengal Sexual Health Programme.
The meeting was well attended by doctors, lawyers, and
The suspension of the right to of people living
with HIV/AIDS to marry is a violation of their human
rights. We, at the Lawyers Collective HIV/AIDS Unit,
hope that these public meetings will generate public
opinion on this issue and motivate people to make a
concerted effort to reverse this judgement. The public
meetings so far have been by and large well attended
and a collective voice advocating the restoration of
the right of people living with HIV/AIDS is emerging.
Similar meetings are also being planned in Goa, Rajkot,
Trivandrum and Lucknow.
A signature campaign to challenge the
decision of the Supreme Court of India has also been
initiated. A form letter for the signature campaign is
available from the Lawyers Collective HIV/AIDS Unit
via fax, e-mail or the website. The signatures will be
sent as a formal representation to the Supreme Court
of India on the behalf of concerned individuals who
oppose the judgment of the Supreme Court and want to
restore the fundamental right of people living with
HIV/AIDS to marry.
Another Success Story….
25th April, 2000 - A petition was
filed by Maharashtra Network of Positive People (MNP+),
against illegal advertisements claiming a "cure
and treatment for HIV/AIDS". The Bombay High
Court, admitted the petition and issued an interim
order restraining the Respondents, M/s Fair Pharma,
through sole proprietor T A Majeed, Ernakulam, Dr.
N.M. Joshi, Vaidya Jagjeet Singh either through
themselves or through their servants, agents from in
any manner issuing or publishing of any
advertisements, brochures, pamphlets, press releases
or any other information or material including putting
up of a web site or any other information on the
Internet claiming to have a "cure or treatment
for HIV/AIDS" through any drugs, treatment or
Please send your comments and
queries to the addresses given below. Those
affectedbyHIV/AIDS seeking legal aid, advice and
support are welcome to contact us at:
Lawyers Collective HIV/AIDS Unitaidscaw@bom5.vsnl.net.in
7/10, BOTAWALLA BUILDING, 2ND FLOOR
HORNIMAN CIRCLE, FORT
MUMBAI - 400 023
TEL: 22 267 6213/9 FAX: 22 270 2563
Hours : Monday – Friday : 10:00 a.m. – 7:00 p.m.
Saturday : 10:00 a.m. – 4:00 p.m.