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“The only thing necessary for these diseases to the triumph is for good people and governments to do nothing.”

        

"The most significant obstacle to progress against the AIDS epidemic is the threat of discrimination."

http://www.lawyerscollective.org/lc-hiv-aids/Abstracts/abstracts.htm

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 results?

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 legislation.

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 for her/him.

 

CONFIDENTIALITY

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 employment.

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 transmission.

§ Methods of preventing HIV transmission.

§ Universal workplace precautions and safe practices recommended by WHO.

§ Information about the services, monitoring and treatment options available to persons with HIV/AIDS.

§ 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 matter.

§ 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 individual concerned.

§ 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 bleeding persons.

§ 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 real impact.

 

In Conversation….

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. Some excerpts:

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 function?

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 regard?

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 to HIV/AIDS.

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 so forth.

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 company doctors?

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 individual affected.

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 disclosure.

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 well.

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 CII?

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 the

People Living with HIV/AIDS Right to Marry

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 NGO representatives.

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 alternate medicine.

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 Unit
7/10, BOTAWALLA BUILDING, 2ND FLOOR
HORNIMAN CIRCLE, FORT
MUMBAI - 400 023
TEL: 22 267 6213/9 FAX: 22 270 2563
E-MAIL :
aidscaw@bom5.vsnl.net.in or aidslaw@vsnl.com
Hours : Monday – Friday : 10:00 a.m. – 7:00 p.m.
Saturday : 10:00 a.m. – 4:00 p.m.