Legislation and Policies

Acquired Immune Deficiency Syndrome (AIDS)

CANADIAN HUMAN RIGHTS COMMISSION POLICY ON HIV/AIDS

Everyone has the right to equality and to be treated with dignity and without discrimination, regardless of HIV/AIDS status.

To ensure the fulfillment of this principle the Commission has adopted the following policies:

1. COMPLAINTS

The Canadian Human Rights Act prohibits discrimination on the basis of disability. Individuals with HIV/AIDS may therefore seek protection under the Canadian Human Rights Act. People who are not HIV positive may also be subject to discrimination by virtue of their real or perceived membership in a risk group or their association with a person or people with HIV/AIDS. These individuals may also seek protection under the Canadian Human Rights Act on the basis of perceived disability.

The Commission will expedite the investigation of complaints alleging HIV/AIDS related discrimination.

2. BFOR/BFJ

The Commission will not accept being free from HIV/AIDS as a bona fide occupational requirement (BFOR) or a bona fide justification (BFJ) unless it can be proven that such a requirement is essential to the safe, efficient and reliable performance of the essential functions of a job or is a justified requirement for receiving programs or services.

As a result of new drugs and forms of intervention, people with HIV infection are now able to continue productive lives for many years. If individuals with the requisite workplace accommodation are able to continue to work they should be allowed to do so. Any decision made by an organization relying on health and safety considerations to exclude a person must be based on an individual assessment supported by authoritative and up-to-date medical and scientific information.

3. PRE AND POST EMPLOYMENT TESTING

HIV positive persons pose virtually no risk to those with whom they interact in the workplace. The Commission, therefore, does not support pre or post employment testing for HIV. Such testing could result in unjustified discrimination against people who are HIV positive.

4. PUBLIC EDUCATION

The Commission will assist in fostering improved public understanding of HIV/AIDS. The level of misunderstanding about HIV/AIDS remains high and contributes to the discriminatory treatment of people who are HIV positive or who are perceived to be so.

5. WORKPLACE POLICIES

The Commission will encourage employers to develop an HIV/AIDS workplace policy to ensure employees are accurately informed about HIV/AIDS as it affects them in the workplace. This will avoid unnecessary fears about the disease and its transmission which could lead to discriminatory acts.

June 1996

BACKGROUND NOTES CHRC POLICY ON HIV/AIDS

1. INTRODUCTION

The Commission originally issued a policy statement on AIDS in 1988. The present document, which revises the 1988 policy, outlines the CHRC'S position on HIV/AIDS based on current medical, scientific and legal information.

The Canadian Human Rights Act prohibits discrimination on the basis of disability. Individuals with HIV/AIDS may therefore seek protection under the Canadian Human Rights Act. People who are not HIV positive may also be subject to discrimination by virtue of their real or perceived membership in a risk group or their association with a person or people with HIV/AIDS. These individuals may also seek protection under the Canadian Human Rights Act on the basis of perceived disability.

2. BFOR/BFJ

In its 1988 policy, the Commission referred to three situations which, at that time, it believed could result in a possible BFOR/BFJ. These three situations were:

• the health care setting;
• where employment requires travel to countries which ban entrance to people who are HIV positive; and,
• employment where the employee performs job duties which impinge on the safety of the public and performs those duties alone.

People with HIV/AIDS are now able, as a result of new drugs and forms of intervention, to continue productive lives for many years. If individuals with the requisite accommodation are able to perform the essential components of the job or receive programs or services in a safe, efficient and reliable manner they should be permitted to do so. Any decision made by an organization relying on health and safety considerations to exclude a person must be based on an individual assessment supported by authoritative and up-to-date medical and scientific information.

The Commission reviewed the BFJ/BFOR provisions of the 1988 policy in light of the many developments regarding HIV/AIDS in recent years. The 1996 policy has been adjusted accordingly.

2.1 Health Care

In May 1993, the Canadian Medical Association announced its policy on HIV in the workplace. The policy is instructive on the issue of the health care environment and HIV. Regarding health care workers the policy states:

There have been no instances in Canada of HIV infections in patients resulting from exposure to infected health care workers....Health care workers with HIV infection should be afforded the opportunity to compete for jobs and continue to work at their usual occupation as long as they meet acceptable performance standards and are mentally and physically able to perform the essential components of work safely, efficiently and reliably.

The Canadian Human Rights Commission concurs with this view.

2.2 Travel to Foreign Countries

The Commission has not received complaints from people with HIV/AIDS who have been denied employment due to travel restrictions. This may be as a result of policies in countries permitting entry for a short period to people with HIV/AIDS. For example, since 1993, non-immigrants who are HIV positive may file a waiver application to enter the United States for 30 days or less for reasons such as conducting business or attending conferences.

The CHRC does not have jurisdiction over foreign governments that require HIV testing for non-nationals to enter their country. However, Canadian federally regulated employers requiring employees to travel to countries which require HIV testing should take reasonable steps to avoid negative employment consequences for employees who are HIV positive. Failure of an employer to provide such accommodation could constitute the basis of a complaint of discrimination against the employer.

2.3 Public Safety

BFOR

At the time the 1988 policy was issued, it was believed that the symptoms of AIDS dementia complex, slowing of intellectual processing and poor attention, could occur at any stage of the disease. This raised concerns about positions where HIV positive employees perform job duties that impinge on the safety of the public and perform these duties alone.

More recent medical research indicates that AIDS dementia complex is a complication in the advanced stages of HIV disease. Gradual, cognitive decline does not appear to occur during the early stages of HIV.

It is therefore unlikely that an employer would be able to establish a BFOR based on the concern of the sudden onset on dementia as the evidence suggests this condition is a complication of advanced HIV disease.

BFJ

The Canadian Human Rights Act provides that it is not a discriminatory practice for a service provider to deny goods, service or facilities to a person if the denial is based on a bona fide justification (BFJ). The Canadian Human Rights Commission policy on BFJ recognizes the service provider's right to ensure a person is able to comply with a requirement that is essential for the safe and effective delivery of the service.

Incidents have been reported of service providers refusing to provide services to a person who is HIV positive on the grounds that to do so would pose an unacceptable risk of infection to them or their employees and, therefore, would constitute a BFJ.

For example, it had been thought that rescue workers, such as police and firefighters dealing with trauma victims who were HIV positive might come in contact with the body fluids of HIV-positive people and, therefore, be at added risk of infection.

The CMA has, however, concluded that in such circumstances the risk of transmission is extremely low, and no cases of transmission have been recorded. As a general measure to minimize the risk of infection, the CMA states that workers should take reasonable precautions when handling human blood or other bodily fluids capable of transmitting HIV.

For the reasons explained above, the Commission would not generally accept a BFJ based on an alleged danger to the service provider. It is well established that employee or customer preference is not a legitimate reason for a discriminatory action. Therefore, employee or customer concerns about dealing with a person who is HIV positive can not be the basis of a BFJ.

3. HIV ANTIBODY TESTING

Controversy has arisen over whether applicants and employees should be subject to HIV testing as a condition of employment.

The CHRC believes that in the employment setting medical testing should only occur where determination of the condition being tested for is necessary for the safe, efficient and reliable performance of the essential components of the job.

HIV positive persons pose virtually no risk to those with whom they interact in the workplace. The Commission, therefore, does not support pre or post employment testing for HIV because the results of such testing could result in unjustified discrimination against infected people. Regarding health care workers, the Canadian Medical Association Policy on HIV/AIDS states that:

The routine testing of health care workers for the HIV antibody is not justified. The CMA supports the application of universal precautions that enhance the protection of health care workers against potential infection from patients and vice versa.

The Canadian Human Rights Commission supports this view.

4. COMPLAINTS PROCESSING

Although people with HIV/AIDS may lead productive lives for many years, unfortunately there is still no cure for the disease. Due to the special nature of HIV/AIDS the Commission will expedite the investigation of complaints based on AIDS/HIV. This will help to ensure that complainants are able to receive the benefits of any redress that may be owed to them in a timely manner.

5. EDUCATION

The level of misunderstanding about HIV/AIDS remains high and contributes to the discriminatory treatment of those with HIV/AIDS and those who are perceived to be in high risk groups. Education is clearly the key to combating discrimination based on this misinformation and the Commission has and will continue to assist in fostering improved public understanding of HIV/AIDS.

6. WORKPLACE HIV/AIDS POLICIES

Employers have a responsibility to ensure employees are accurately informed about HIV/AIDS as it affects them in the workplace. This will avoid unnecessary fears about the disease and its transmission which could result in discrimination. The employer's commitment to non-discrimination regarding employees with HIV/AIDS should be clearly expressed in a workplace HIV/AIDS policy. The policy should set out how the employer will deal with issues relating to HIV/AIDS in their particular workplace.

Employers without a HIV/AIDS policy will find themselves less prepared to deal with HIV/AIDS related issues such as confidentiality and non-discrimination. The relatively simple step of putting in place and communicating a HIV/AIDS policy sends a clear message to employees on the organization's commitment to equality.

7. FOR FURTHER INFORMATION

For further information please contact one of the Commission’s regional offices in Halifax, Montréal, Toronto, Winnipeg, Edmonton or Vancouver or the national office in Ottawa.