Earlier last month, we held a special morning tea to farewell Positive Peer Educator Liz Walker who has been with the organisation for three and a half years in an unexpected career change.
WATCH: Liz reflects on her journey at the WA AIDS Council
Generally, you are not obliged to tell an employer or prospective employer that you are HIV-positive. However you do have a duty to take reasonable care to ensure your own safety and health and to avoid adversely affecting the health and safety of others in the work place.
Employers and managers must ensure first aid is available at all times.
If you do disclosure your HIV-positive status employers are often unprepared and frequently over react because they think that the risk of transmission to others is much greater that it actually is. They may be concerned over situations that pose no risk ‘what if someone else drinks from your mug?’ or where there may be a slight risk that can be minimised by the use of Standard Precautions ‘what if you cut ourself and bleed?’
Employers have a general duty to maintain employee confidentiality and in many cases your employer will be subject to the Privacy Act 1988 which requires that the information be kept confidential. In ractice though, if your employer breaches the duty then there may be no way to provide a satisfactory remedy. Consider very carefully before disclosing because once you have disclosed, you cannot take the information back. While your current supervisor may be understanding, if your HIV-positive status is on file then your next supervisor will also have access to this information and may have a different attitude.
If an employer dismisses you because you have HIV, or prevents you from undertaking certain tasks that would normally be part of your job, then this may amount to unlawful discrimination. Seek legal advice about your rights. You must act quickly however, as in some instances legal action must be commenced in less than 21 days. Contact the WA AIDS Council for legal referral.
There are very few jobs where an employer or prospective employer can legally ask about your HIV status/require you to have an HIV test.
Australian Defence Force (ADF)
Everyone who applies to join the ADF is tested for HIV. If you test HIV-positive you will not be accepted into the ADF.
The ADF also regularly test serving personnel. If you are already a member of the ADF confirmation of a HIV-positive status will result in you being non-deployable. You will be referred to a Medical Employment Classification Review Board and may be medically discharged or retained as a member in a non-deployable role for a ‘period of time’.
Combat and related roles are specifically exempted from the protection of discrimination legislation.
HIV positive people are not able to gain or hold certain classes of commercial aviation licences. It is an offence to give false or misleading information, or to omit information when completing an application
for an aviation medical examination. This includes lying about your HIV status. The maximum penalty is twelve months imprisonment.
Health Care Workers (HCWs)
There is no mandatory requirement in WA to test HCWs for their blood-borne virus status (i.e. HIV, HBV, HCV). If you are a HIV-positive health care worker you can usually continue to work without any
restrictions, but should always follow procedures to prevent HIV transmission and report HIV exposure incidents. Ancillary staff, such as clerical workers, porters, cleaners and laundry staff in hospitals, nursing homes and other health care settings also do not need to disclosure their status to employers or prospective employers.
HCWs are encouraged to know their own HIV status, especially if performing ‘Exposure Prone Procedures’ (EPPs). HIV-positive HCWs must not perform EPPs. EPPs are procedures performed in a confined body cavity where there is poor visibility and a risk of cutting yourself with a sharp tool, tooth, or bone. This restriction particular affects surgeons, dentists and a limited number of nurses. If you are a HIV-positive surgeon, dentist or nurse performing EPPs you must seek advice from your professional body as to the types of procedures you may and may not perform or assist with.
If you are taking a lot of sick days your employer may ask you to provide a medical certificate. You can ask your doctor not to specify your HIV status on your medical certificate.
Medical examinations/drug test
By law, you cannot be tested for HIV without your specific consent and it may be unlawful for your employer to require you to undergo a HIV test. If you consent to a HIV test then your employer has a duty of confidentiality and must also not treat you less favourably.
Some industries enforce random drug tests aiming to assess whether you have used any prohibited substances which may make it unsafe for you and your colleagues in the work place. Antiretroviral (ARVs) medication, in particular efavirenz (found in Australia products Stocrin and Atripla) sometimes cause false positive results for prohibited substances, such as tetrahydrocannabinol (THC) found in cannabis and the prescription medication benzodiazepine.
If you receive a false positive on a drug test due to your ARV medication then this may cause some problems. A false positive may cause the medical examiner to notify your supervisor so they can withdraw you from duties pending a conclusive result. A letter from your HIV doctor indicating you are on prescription medication which might cause a false positive drug test is advisable to have with you, or to obtain if this occurs. It is not necessary for your doctor to cite your HIV condition as the reason for the medication or to list the ARVs.
If you do choose to disclose your HIV status to the medical examiner they have a duty of confidentiality and that information is protected by privacy laws.
If you have any further questions about employment, don't hesitate to contact Mark Reid on 08 9482 0000 or email firstname.lastname@example.org
Disclosure of your HIV-positive status can cause anxiety. Although you may feel pressured, it is good to know the facts before jumping in and disclosing in situations were it is unnecessary.
Medical/dental: There is no legal requirement that you disclose your HIV status before undergoing any type of medical examination or treatment, including dentistry. However, it may be wise to disclose since HIV medications may interact with other medications; or the progression or treatment of other conditions may be affected by HIV infection. Under such circumstances, failure to disclose may lead to serious consequences for your health. Your treatment for other conditions may have to be modified to allow for the effects of HIV infection and HIV medications, and your doctor or dentist can only do this if they are fully informed. Discuss with your regular HIV specialist whether disclosure to another practitioner is medically necessary.
View the WA Guide to Disclosing your HIV Status by clicking on the image below.
Family/friends/ex-partners/others: Depending on the circumstances (i.e. what precisely was said, and the manner in which the disclosures were made), you may be able to apply for an apprehended violence order to restrain the person from continuing to harass you. If the person came to know of your HIV status as the result of an intimate relationship there is also a small possibility that you may be able to sue for a breach of confidence. Finally, if the person’s comments are defamatory, then you may also be able to sue under defamation law.
Unfortunately, both defamation and breach of confidence actions are costly and carry a significant risk for applicants because if you lose you will end up liable for the other person’s legal costs. These actions are also only worthwhile where the other party has considerable assets, as the principal remedy is economic damages.
Contact the WA AIDS Council for initial discussion if someone is telling people that you are HIV positive without your consent. Remember, also, that if someone such as your employer or landlord starts treating you differently because they have found out about your HIV status, then this may be unlawful discrimination and you may be able to do something about this.
HIV Disclosure & Local Legislation: You are subject to the local laws of the country that you are visiting, therefore it’s important to have some knowledge of local legislation with regards to HIV disclosure when travelling. It is illegal for HIV-positive individuals to have sex without documenting disclosure in some jurisdictions and some PLHIV have been prosecuted without onward transmission occurring.
More Information - HIV, the Law & Disclosure
Gay Men & HIV Disclosure (AFAO resource, all Australian States, 2016) https://www.afao.org.au/__data/assets/pdf_file/0005/4595/674_afao_factsheet_HIV_disclosure_2016_3.pdf
Strategies for Proof of HIV Disclosure (US resource, Sero Project) http://seroproject.com/wp-content/uploads/2012/10/sero_brochure_colorprint-1-1.pdf
General Disclosure Information http://www.thewellproject.org/hiv-information/disclosure-and-hiv
Information on Disclosure in the U.S.A https://www.aids.gov/hiv-aids-basics/just-diagnosed-with-hiv-aids/talking-about-your-status/do-you-have-to-tell/
A Snapshot of HIV Criminalisation in the U.S.A (Center for HIV, Law & Policy, 2016) http://hivlawandpolicy.org/resources/when-sex-crime-and-spit-dangerous-weapon-snapshot-hiv-criminalization-united-states-center
General Disclosure Information (Terry Higgins Trust, UK) http://www.tht.org.uk/myhiv/Telling-people/Who-to-tell
HIV Disclosure & The Law (CATIE, Canada, 2013) http://www.catie.ca/en/practical-guides/hiv-disclosure
HIV Disclosure to Partners (Canadian resource, 2012) http://www.aidslaw.ca/site/wp-content/uploads/2014/06/Legal-Network-HIV-disclosure-to-sex-partners.pdf