HIV AND THE WORKPLACE; THE KENYAN REALITY.

What do you do when a medical test for employment includes a HIV test? What do you do when your employer asks you to undergo a HIV test? Does your employer have the right to do that? In employment forms, are you obligated to reveal your HIV status? These and related questions are a representation of the workplaces that we are at every day. HIV- related conversations are more common but has the stigma really gone away? Are we really treated fairly regardless of our real or perceived HIV status?

On 18th March 2008, The High Court ruled that in the case of J. A. O. Vs Home Park Caterers & Metropolitan Hospital HCC No. 38 of 2003, the testing of an employee or prospective employee for HIV without his or her consent constitutes an invasion of her right to privacy. That disclosure of an employee’s HIV status to the employer without her consent is unlawful. That termination of an employee on the basis of his/her HIV status only is unlawful.

The case was filed by a waitress who had been dismissed from her place of employment after her HIV status was revealed to her employer by the company doctor and her status was used as the basis for her dismissal. This is just one of the many cases filed at The High Court challenging workplace practices that have long been tolerated.

According to the 2008 UNAIDS report on the Global AIDS Epidemic, the majority of those infected are between the ages of 15 and 49. This is the working population’s prime age thus the effect on the economy is quite large. Thus the issue of discrimination in the economy facing such struggles arises.

The constitution and laws of the land have sections that deal with discrimination and issues surrounding HIV and the workplace. The most relevant of these is the HIV and AIDS Prevention and Control Act (2006) which addresses matters of discrimination, privacy and personal rights in regard to HIV. Section 13 states that no one should be compelled to undergo a HIV test unless one is charged with an offence that is sexual in nature. Section 22 prohibits the disclosure of one’s HIV status without ones written approval and the discrimination based on real or perceived HIV status.

Based on the ILO Code of Practice of HIV and AIDS and in conjunction with the Ministry of Labour and the Central Organization of Trade Unions, the Kenya National Code of Practice of HIV and AIDS was developed. The document emphasizes that HIV and AIDS is a workplace issue and it should be addressed on all levels It, among other things, emphasizes HIV and AIDS as a workplace issue, prohibits pre-employment screening of prospective staff and those already employed, confidentiality, continuation of a working relationship and social dialogue about it.

It is illegal for an employer to make an employee undergo a HIV test because that would be under coercion thus no informed consent but desperation and ignorance make the law irrelevant at that point. Thus the world of theory and practice collide. HIV negative people would have no problem undergoing the test, in most situations if it meant that they would get employed. Refusal to take the test may be taken to mean that one is HIV positive (even though one may be doing it for the purpose of principle.) and consequently many times discrimination takes place pre-employment based on perceived status.

Proving that your real or perceived status was the basis for being denied a promotion or employment is another hurdle that the aggrieved face. In civil cases, the burden of proof lies with the plaintiff and that may be hard as without contracts or documents, the case would be based on hearsay or assumptions. The weight is lifted slightly because a decision will be arrived at based on a balance of probabilities as opposed to the rigid ‘beyond reasonable doubt’ associated with criminal cases. Going the court route however can be time-consuming and costly. The  HIV and AIDS Prevention and Control Act (2006) mandates a tribunal composed of a chairman, two advocates of the high court, two medical practitioners and two other persons with the necessary skills pertinent to the operations of the tribunal, to deal with complaints arising from the breach of this act. The tribunal is limited to civil proceedings and its decisions are legally binding. It has the jurisdiction to listen to original and appeal cases.

There is no definite answer when asked what to do if your employer asks you for a HIV test but you are now armed with the knowledge to know the legal limits that an employer works within and you are able to make an informed decision.