The Gazette 1988

GAZETTE

DECEMBER 1988

public service wh i ch provides that employees who are HIV positive or who suffer from AIDS will be retained in their job for as long as they can perform their duties to an acceptable standard. The I.C.T.U. has also issued guidelines to trade unions to help w i th practical issues that may arise. This leaves a very big gap where some form of legis- lation is required to comply w i th EC requirements and to bring Ireland even partially into line w i th the US position. It is likely t hat the Employment Equality Act, 1977 could be recast so as to extend its p r o t e c t i on and p r ocedu r es to persons w i th HIV infection, subject to the provision that the person be fit to carry out the duties of the job and is not a source of danger to himself or others. Also, the list of persons deemed to have been unfairly dismissed under the Unfair Dismissals Act could readily be enlarged to include a dismissal wholly or mainly resulting from the employee's status as a person w i th HIV infection. It cannot be stressed often enough that a person w i th HIV i n f e c t i on may be t o t a l ly asymptomatic and remain so for many years. In Buenos Aires the meeting of the Committee on Medicine and the Law passed a resolution wh i ch has now been sent forward for consideration by the Council of the I.B.A. and which provided as follows:- 1. That all member States bring forward effective legal measures to ensure equal access to employ- ment for persons w i th HIV. 2 That the I.B.A. recognises AIDS and HIV infection as a disability or handicap in respect of wh i ch legislation can be introduced to prohibit discrimination against HIV positive persons in housing, employment, public accommo- dation, granting of credit and delivery of services. 3. HIV testing as a condition of employment should be prohibited except where the absence of AIDS or HIV infection is a bona fide requirement of the job. 4. Employers should be encouraged to make reasonable workplace a c c ommo d a t i on for persons w i th HIV infection. 5. Employers should be encouraged to put in place guidelines and educational programmes for deal- ing w i th AIDS in the work- place. •

AIDS in the workplace Against a background medical prediction of ten million cases of HIV infection world-wide by the end of this decade, the Inter- national Bar Association meeting last m o n t h in Buenos A i r es addressed itself in its section 'Medicine and Law' to some of the legal issues already apparent, including AIDS related problems in the workplace. disabled person simply because he has a physical handicap, providing that person is otherwise qualified and capable of working and does not pose a direct threat to the health or safety of others.

In a milestone decision in March, 1987, the U.S. Supreme Court, in a case wh i ch dealt specifically w i th tuberculosis as a handicap (but wh i ch was also considered applic- able to those w i th AIDS) held that persons w i th contagious diseases were protected under the Act. Congress subsequently codified this ruling in the Civil Rights Restoration Act passed in March of this year. Parallel w i t h this development, a significant number of States have passed or extended their anti- d i sc r imi na t i on laws to protect persons w i th HIV infection. A typical example can be seen in legislation enacted in Rhode Island in July wh i ch prohibits discrimina- tion against HIV positive personnel or those perceived to be infected in h o u s i n g, emp l o y me n t, pub l ic accommodation, granting of credit and delivery of services. As in other States, the measure also prohibits HIV testing as a condition of employment, except where infec- tion would " cons t i t u te a clear and present danger" of transmission to others. Many statutes also require reasonable workplace accommo- dation of handicapped individuals. Both presidential candidates in the recent U.S. election were com- mitted to supporting the Americans w i th a Disability Bill, also sponsored by Teddy Kennedy, wh i ch would extend anti-discrimination measures right across the private sector and which, when enacted, will ensure that every U.S. citizen is adequately protected under the law. The EC, in its Communication on the fight against AIDS in February, 1987, s t r es sed t he need for Commun i ty action in relation to equal access to employment. In this respect, it is perhaps surprising to discover that there is no anti- handicap discrimination legislation in Ireland. In May of this year, the Department of Finance issued a policy document on AIDS in the

While most people have come to realise that there is no risk of transmission of the AIDS virus in o r d i na ry soc i al or w o r k p l a ce s e t t i n g s, a r e c ent s u r v ey in Philadelphia brought home the importance of a proper approach by employers to the problem. The s u r v ey s h o w ed t he 10% of company officials would fire an HIV infected worker, 16% would refuse to work w i th such an employee, and 3 8% would try to restrict

by Ni cho l as J. Kearns Barrister-at-Law

c on t a ct be t ween the i n f ec t ed pe r son and o t her emp l oyees, despite the illegality of such behaviour in the U.S. Less than 3 0% of companies there have in place a policy or set of guidelines for dealing w i t h A IDS in the workplace, although AIDS has been identified as the number one socio- economic concern of employees, above the federal budget deficit, drug and alcohol abuse, and job security. In terms of the appropriate legal response, it is instructive to look at wh a t has happened in the U.S. Significant steps have been taken at State and Federal level to outlaw discriminatory practices against people w i th HIV. The approach has been to treat AIDS and any related c o n d i t i on as a ' d i s ab i l i t y' or 'handicap' w i t h in existing anti- handicap discrimination legislation. The Vocational Rehabilitation Act of 1973 prohibits discrimination by institutions or contractors who receive federal funding against a

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