CONSTRUCTING A LEGAL FRAMEWORK
FOR ADDRESSING HIV AND THE WORKPLACE

Introduction - An Inadequate Legal Focus

This paper examines the legal environment in which the problem of HIV/AIDS has to be confronted in the Commonwealth Caribbean. It demonstrates that currently, the legal infrastructure in the region is not adequate to meet the challenges posed by what has become known as the AIDS pandemic. However, rather than assuming a defeatist or >wait and see= attitude, I put forward innovative routes to approach the problem. In the main, this requires creative ways of utilizing already existing laws and legal practices in order to address the relatively recent phenomenon that is HIV/AIDS.

However, while solutions are presented to overcome the paucity of the legal framework with respect to HIV /AIDS, this approach is in no way intended to undermine the need for new legislative policy specific to HIV/ AIDS.

While the topic concerns the legal issues in relation to HIV / AIDS at the workplace, it is evident that these legal issues involve wider questions which go beyond the workplace to the society at large. Indeed, it is perhaps in the workplace that we see the greatest negative impact of HIV /AIDS.

The subject at hand is indeed very timely. Thus far, we have heard a lot about AIDS prevention and treatment, but perhaps too little about the legal issues involved. While prevention and care is the first step, the legal issues are just as important for us to address. Examining the legal issues is an acknowledgement (however disheartening) that we will not be 100 % successful in prevention and so, we must confront the reality that there are those who already have AIDS or are HIV positive and others who will get the disease. The problems and issues which that brings both to those persons and to the wider society must, therefore, be confronted.

The good news is that we have begun to address these legal issues. The bad news, to my mind, is that this initiative has tended to be somewhat negative.  By that I mean that we have focussed on what may be viewed as >penalising= persons with HIV or AIDS. So, for example, the region has been  quite eager to enact legislation to enact provisions which require notification of the disease. Several countries, including St. Lucia, Grenada, Jamaica and Guyana[2] have notification requirements in place for public health reasons.

We have also embarked on a vigorous and somewhat sensational discussion to ensure that persons who deliberately infect others with the AIDS virus incur criminal liability. Our emphasis here is on punishing victims of the virus where they deliberately attempt to infect others. For example, section 140 of  the new Criminal Code of St. Lucia makes it an offense for anyone to intentionally or recklessly infect someone else with HIV/AIDS. Trinidad is also about to implement such legislation. This is no doubt  important and just. However, I will wager that such a legislative direction will do little to curb the AIDS pandemic and may even alienate AIDS sufferers. It is unlikely that  there is a large percentage of persons going around searching for persons to infect. It is far more likely that there is a larger group of  persons who, because they are fearful of discrimination and stigma, will fail to get tested, never know that they have the disease and infect others in that way.

Criminal liability and laws and practices which marginalise persons with HIV/AIDS, to my mind imply an >us and them= approach. Somehow, it is not our problem. Rather, it concerns >those people out there . . . people who are no longer part of us - people who are expendable=.

An Appropriate Context for the Law

As  policy makers therefore, there are two choices for the region:

(a) We can take a passive approach and treat HIV/ AIDS sufferers as outcasts and burdens on society saying in effect: AWell, we gave you all the information, told you to use condoms, be abstinent etc. You were delinquent and got AIDS. Its your fault - you have failed. The most we can do for you is some little handouts - some free food, some free AIDS cocktails . . . but . . . too bad, that=s it@.

(b) On the other hand, we can take a positive, active approach - We can take steps to ensure that persons living with HIV /AIDS are treated with dignity and continue to contribute meaningfully to the society.

The latter proactive approach does not necessarily encompass an altruistic or humanitarian objective. Rather, it is a pragmatic position that also recognises the following facts that:

(1). The Caribbean has among the highest rates of HIV in the world;

(2). That AIDS is impacting on the most productive parts of our societies - i.e. our young people and our female population. It is also true that the developing world is particularly vulnerable to HIV  because of poverty and other financially driven problems.

If there is recognition and acknowledgement of these facts, there will then be an understanding  that there is  no choice but to take steps to harness the potential of our young people and women (indeed anyone) who are affected by AIDS. They will be given the opportunity to contribute to the society. We will therefore attempt to ensure that the society as a whole can benefit from their potential productivity, in particular, at the workplace.

It is with these considerations in mind that the place of the law is most apparent. The law has an active role to play in the endeavour to encourage and compel those intimately involved in the employment sphere and indeed, the wider society, to ensure that the persons with HIV form an integral and useful part of the work environment.

Thus, the focus on HIV in the workplace must be quite obvious to a Caribbean audience. It is in the workplace that we are likely to see the greatest impact of HIV-AIDS and it is to there that we must turn if we are to minimize the disastrous effects of HIV/AIDS to our economies and societies.

A Bird=s Eye View of Areas of Law Relevant to HIV-AIDS.

The areas of law which may be viewed as being relevant to the discussion of HIV / AIDs in employment are many. The most pertinent include the following:

1. Anti-discrimination laws;

2. Unfair Dismissal Law;              

3. The Constitution;

4. Ordinary Contract Law - especially the Contract of Employment and Implied Terms therein;

5. Health and Safety Laws;

6. Immigration;

7. Sick Leave &Benefits;               

8. Health and Safety Laws (Notification);

9. Unemployment/ Social Security Benefits;                                     

10. Child Labour;

11. Movement of Labour legislation;       

12.Disability law and practice;

Discrimination as An Umbrella Issue in the Legal Program

While many areas of law impact upon and are impacted by the issue of HIV/AIDS,  one of the broadest problems that we need to address is the discrimination practised against persons  because of their HIV status. Indeed, it will be seen that the question of discrimination may be addressed under several of these other subject areas. Such discrimination is, of course, evident not only in the workplace but is a product of the wider society. It is evident in public institutions and services and even, perhaps surprisingly and alarmingly, according to recent studies, in the health services. 

There are a number of reasons why anti-discrimination policies in respect of HIV are important. First: discriminatory practices because of HIV/AIDS have a counter-productive effect on health and safety measures as victims are less likely to come forward to be tested and to access available treatment and other benefits. This, in turn, increases the risk of spreading the disease as it can cause infected persons to inadvertently infect others. Consequently, in the long run, more employees will be impacted.

Secondly, such a phenomenon also means that workers who do not receive treatment or consideration in the workplace are less likely to be able to perform at work, either because they are  more ill than needs be or because of psychological factors, thereby having hugely negative impacts on productivity. For example, more sick days etc will be lost, thus directly impacting on the workplace. Infected persons are also less likely to remain at the workplace either because of  direct discrimination such as with dismissal,  or >voluntary= separation. Certainly too, they are less likely to be hired, thus depriving the workforce of potential productive elements.

Discrimination against HIV/AIDS victims is wide and varied and practised by both private employers and the State. Such discrimination affects not merely how one is treated at the job, but goes to the heart of job security and access to employment (hiring and firing questions). Discriminatory attitudes may also prevent employers and policy makers from introducing and implementing more sensitive and practical policies to deal with HIV at the workplace, whether these are privacy policies or practical policies of job restructuring. Discrimination thus becomes a broad umbrella term under which we can address many of the legal issues of HIV/ AIDS at the workplace.

Underlying all of this is the need for public education, the need to change the culture surrounding HIV. The law cannot stand alone. It is somewhat of a >chicken and egg= situation. On the one hand, the law can compel attitudinal changes. On the other, the law can reflect the realities and changes in society.

An appropriate legal program therefore, should  reevaluate our mind-sets and prejudicial practices in more general areas. For example, how are we to deal with issues tangential to HIV such as sexual orientation, gender discrimination and xenophobia? As employers, it even involves questioning how imaginative and flexible we are willing to be in our management practices when dealing with workers with HIV? These are all realities when dealing with the AIDS problem.

But while discrimination in the workplace may be the largest issue, it is not the only important one. Other, more practical concerns exist. How do we deal with different standards in different countries in the region, for example, where they concern migrant workers or non-nationals? This involves  immigration concerns, issues of the portability or harmonisation of work benefits and protections and issues of public safety. The list is non-exhaustive.

 

Existing Legal Framework for HIV/AIDS

What then, is the face of the law today with respect to HIV and employment? Unfortunately, it is  not a very pretty picture.Existing Legal Framework for HIV/AIDS  The Bahamas stands alone as the only country thus far which has enacted specific legislative provisions on HIV / AIDS in employment. This is in the form of a brief clause under section 6 of  the Employment ACt 2001 that includes HIV/AIDS as one of the prohibited grounds of discrimination. The proposed Labour Code of St. Lucia, expected to be passed in 2006, also contains a clause prohibiting discrimination  on the ground of  HIV/AIDS. Barbados does not have specific HIV/ AIDS legislation, but its Industrial Relations Code of Practice, which is a non-binding but persuasive document, prohibits discrimination on the ground of HIV/AIDS.  Elsewhere in the region, legislative reform is still at the discussion stage  except for provisions criminalizing transmission and notification, as discussed above.

In addition, the laws and legal practices which could compensate for this gap in AIDS specific legislation, are generally lacking generally in the region.

Policy Initiatives

While legislation is relatively weak, HIV/AIDS has a strong public profile in the reviewed countries and several programs are being developed on both national and enterprise levels, and more recently, by trade unions. The strong focus on HIV/AIDS is being fuelled by the crisis caused by what is being called an AIDS pandemic in the region and the fact that it has caught the attention of world financing institutions which are willing to finance the fight against it. There are campaigns to educate the public.

However, there is still much ignorance and stigmatisation associated with HIV/AIDS in all of the countries in the region. In Guyana, for example, it was reported that some employees refused to share sanitary facilities with infected workers and there was little respect for their privacy.[3]

 

Using Alternative Routes to Combat Aids Discrimination

As workers in the region are generally bereft of specific protective legislative provisions on HIV/AIDS, the question remains whether they can derive the relevant rights from other legal provisions, for example, the right not to be discriminated against, not to be dismissed and so on. We now examine the adequacy of these alternative routes to protecting against discrimination and unfair treatment for those with HIV/ AIDS.

 

General Anti-Discrimination Provisions As a Shield Against HIV Discrimination

It is to be expected that where general provisions against discrimination in employment exist, that workers with HIV/ AIDS can look to these provisions for some assistance. However, an initial obstacle to be met is that very few countries in the region, St. Lucia and Guyana being  laudable exceptions, have enacted such general anti-discrimination laws or policies.[4] In Guyana, the Prevention of Discrimination Act 1997 lays down general criteria prohibiting discrimination in employment and elsewhere. In St. Lucia, the Equality of Opportunity and Treatment in Employment and Occupation Act 2000 prohibits discrimination and inequality in employment in broad terms.

However, even where such general anti-discrimination provisions exist, they do not mention HIV/AIDS as a ground of discrimination. As anti-discrimination law generally depends on the grounds of discrimination being enumerated, it is not expected that HIV/AIDS can be inferred easily from any of the stated grounds of discrimination unless it can be demonstrated that the protection is reasonably incidental to another stated ground.

A possible exception is with regard to the disability approach. As discussed further below, In jurisdictions around the world, either under case law or statute, discrimination on the grounds of  HIV/AIDS has been treated as an aspect of disability and this approach can be adopted here where disability is put forward as a ground of discrimination. This is the case in Guyana, under the Prevention of Discrimination Act 1997 and in St. Lucia, under section 4 of the Equality of Opportunity  and Treatment in Employment and Occupation Act 2000. However, this route to protection would be on firmer ground if the definition of disability were to specifically include HIV/AIDS.

Culture of Silence

Laws which seek to prohibit discrimination or disadvantage meted out to employees with HIV must also speak to the culture of silence surrounding the disease. Thus, the law cannot merely seek to protect persons >diagnosed= with HIV /AIDS as this will require such persons to undergo medical examination. Such a law will also fail to recognise that many potentially infected person will refuse testing. In circumstances where confidentiality is not secured, this means that they expose themselves to the very discrimination that the law attempts to ban. Likewise, provisions concerning counselling and the inadmissibility of secret testing should accompany the ban. To counter this negative effect, wording often used in recent laws concerned with AIDS includes: that a worker >is perceived to or carries the HIV virus=.

Fear and Prejudice -Myths Surrounding Medical Science

In many cases, the prejudicial action of an employer toward his HIV infected employee is clearly because he or she is fearful of the effect of HIV on the workplace and co-workers. The employer may be afraid that other persons under his care will >catch= the disease or that his customers may believe that they will become infected because of the presence of an infected employee, thereby resulting in a loss to his business. A good example is that of a restaurant business. This leads us to a discussion on >What is AIDS from a medical viewpoint? It is an important question as it affects the legal response to the issue. Much of the fear engendered by HIV/AIDS stems from the ignorance which still surrounds the disease. This is why, for example, workers may not want to work with those with AIDS or employers might wish to dismiss once they discover that  an employee has the disease or is perceived to have it.

There are, of course, several myths associated with AIDS. For example, some persons still believe that one can acquire the disease from casual contact or mere association with infected persons. Interestingly, the cases themselves have begun to address the myths and prejudices associated with HIV. Thus, the legal response to HIV/AIDS takes direct account of these myths. Does, for example, the employer have the right to fire on grounds of safety where he merely suspects danger and does an employee have a right to privacy in such a situation?

 

Health and Safety Issue

The courts have been adamant that a first principle is  to ascertain whether the fear of HIV is based on ignorance or prejudice or real danger and risk. Under the law, only the latter will suffice to legitimize a dismissal, a refusal to employ or other discriminatory action taken with regard to HIV infected persons. Certain occupations are clearly Ariskier@ than others and discrimination law  recognizes this. However, these are very well defined and strict exceptions. Health care workers provide the most common and acceptable examples. (Their employment is risky both if they have the disease and if they are dealing with persons with the disease).

For persons in employment outside of these special risky occupations, the courts have shown very little tolerance for those who discriminate against or penalize workers with AIDS based on fear and ignorance. In fact, these courts have argued that the law has a duty is to stamp out the stigma of prejudice based on ignorance and lack of scientific data, highlighted in the South African Airways Case. It is therefore insufficient that the employer or his customers merely believe or are fearful that they can >catch= AIDS from an infected employee.

Further, the law differentiates depending on the stage of the disease in order to pose effective legal solutions. Different variables, whether risk related or competence on the job are at play. Should we treat an employee who is a degenerative stage of the disease in the same way as someone whose disease is still in the passive state? A person with full blown AIDS may well pose a greater threat. to others depending on the work environment and may be less capable of performing at work.

In addition, the conduct of the infected person or the work situation may be relevant. If the patient=s conduct is risky, such as where he or she is always cutting herself or himself, this might be important. In the Prevost case, for example, while the employee was a goods clerk and was not in a risky occupation,  the court found that his employment was risky, because he needed to use a knife and he constantly cut himself. Knives were commonly shared in the stock room at the workplace. Here, it was reasonable for the employer to ask for a test to ascertain the level of his disease.

Other myths which impact on the treatment given to HIV sufferers are that:

1. Only homosexuals get it - This can lead to double discrimination on the ground of a person=s sexual orientation, although we now know that homosexuals are no longer the only or most prevalent group susceptible to the disease.

2. That persons who have AIDS cannot perform their jobs ( this may  lead to unnecessary dismissals, for example.)

The Principle of Accommodation

The principle of accommodation is a key aspect of anti-discrimination law. The principle mandates that, in order to avoid a claim of discrimination, the employer must do all in his or her power to facilitate the particular employee in relation to that employee=s >deficiencies=  which are relevant to the ground of discrimination. So, for example,  persons with HIV  should be  allowed to work at home if being physically at the workplace is difficult or if they prefer the privacy of home, away from inquisitive stares, questions and humiliation etc. The employer will also need to consider more flexible work arrangements such as  job restructuring,  modifying work schedules/ plans and even the  re-assignment of duties. Similarly, the employer may need to be more lenient with regard to sick leave absences.

The principle of accommodation, is however,  buttressed by an undue hardship limitation, since the employer=s duty is only to reasonably accommodate.

In considering how to accommodate the person with HIV, another principle of anti-discrimination law comes into focus. This is the comparator principle. To avoid a claim of discrimination, therefore, the employer is only required to treat the employer with HIV/AIDS in similar vein to how he would treat anyone else in a similar position. For example, how would the employer be expected to treat another employee with some other terminal disease such as cancer? How many sick days would be given? Similarly, the employer must consider  the stage of the disease. At what point, for example, would a person be incapacitated?

This is not to suggest that the unique aspects of HIV, such as stigma, would be ignored. Rather, these are factored into the equation. There may be a higher burden to accommodate HIV patients at home, for example, because of the stigma attached etc.

In assessing discriminatory conduct, the question of access to employment also needs to be considered. Discrimination law specifically includes not only dismissal but access to employment issues. Thus, an employer cannot refuse to hire someone simply because that person is HIV positive or has AIDS or even is perceived to have HIV.

Unfair Dismissal Law to Protect HIV Victims

In the absence of comprehensive anti- discrimination legislation, unfair dismissal legislation and practice are useful in addressing prejudicial action against those persons with HIV /AIDS. However, such protection is limited and can only address one such prejudicial act, dismissing or firing someone with the virus. It is not a holistic avenue for redress and cannot, for example, prevent discrimination at the hiring stage, or make adequate provision for accommodating persons with HIV.

The thrust of unfair dismissal law is that no employee should be dismissed from employment without a valid reason. The court or tribunal will examine the dismissal to ensure that it is reasonable and not arbitrary or, as in Trinidad and Tobago, in line with unfair industrial relations practice. The assumption here is that dismissing someone simply because he or she is HIV positive or has AIDS is a bad reason. This, indeed, is the approach that the courts have taken in a plethora of cases. This thesis has not yet been tested in the region=s courts but it is likely that we will be in sync with unfair dismissal jurisprudence from elsewhere.

In determining whether a person who is HIV positive or has AIDS should or should not be dismissed, the important question is  whether that employee has the capacity to perform the job. This means that the stage of the disease is taken into account. Where a person merely has HIV and is not a real health and safety threat to anyone, is there a valid reason for terminating employment?[5] This situation may be contrasted to that of a person who has full blown AIDS and is weak and extremely ill to the point of incapacity. However, the notion of incapacity is to be approached in similar vein to any other sick person.

Unfair dismissal law will impose a similar duty to accommodate the AIDS sufferer to that under disability/ discrimination law. Thus, the employee=s ability to perform will be linked to the employer=s attempts to assist him in performing. Home working, for example, should be given if possible, where it will be too difficult to travel to work or where he will be too humiliated to work at the place of employment.

Nonetheless, as with anti-discrimination law, what is reasonable will be adjudged taking into account the undue hardship and burdens placed on the employer, although we have noted in the discussion on anti-discrimination that the courts have placed high thresholds on employers for justifying prejudicial treatment to HIV/AIDS victims.

A more difficult question arises  where a person who has HIV, has to do different types of work because of illness or has to miss many days at work. In such circumstances, is there a valid reason for dismissal? As discussed above, the question of sick leave absences will be measured against the duty to accommodate and the undue hardship placed on the employer. The law, while it imposes strict standards in relation to dismissal does not, as a blanket rule, prohibit employers from dismissing someone with HIV/AIDS, if it is reasonable taken into account all the circumstances.

A difficulty with the unfair dismissal approach is that not all countries in the region have implemented unfair dismissal legislation. A few countries, such as Barbados, Jamaica and St. Lucia still operate under the  common law doctrines of employment at will, where the employer has complete freedom to hire and fire.

Issue of Constructive Dismissal

Even in the absence of unfair dismissal legislation, an employee may utilize dismissal law for protection against discriminatory treatment , on the ground of HIV /AIDS. Under the common law, where the employer=s conduct is such that a worker cannot be reasonably expected to continue employment, that employee may unilaterally terminate the employment and claim that he or she has been constructively dismissed and is thus entitled to compensation. The principle can easily come into play where HIV/AIDS is an issue. For example, where the employer=s conduct is so discriminatory or prejudicial because of the worker=s HIV status, or even where the co-workers are discriminatory, thereby creating a hostile working environment which is not ameliorated by the employer, an HIV infected employee may have a good cause of action.

Constitutional Protection

A popular assumption is that our constitutions will be able to address issues relevant to HIV/ AIDS. In particular, it is expected that problems such as discrimination and privacy violations may be addressed. However, for a number of reasons, our constitutions will not be particularly useful tools to address these problems. First, under the state action doctrine, our constitutions typically address only human rights violations by the State viz-a-viz the citizen. Hence, perceived encroachments of freedoms by private employers cannot be challenged successfully in the courts. This excludes a great majority of workers and HIV victims.

Secondly, perhaps unsurprisingly, nowhere in our constitutions are the terms HIV or AIDS addressed. This means that we will have to turn to more general constitutional provisions, such as those on privacy and discrimination for assistance. Here too, we may run into difficulty. The various constitutions, of course, specifically mention both discrimination and privacy. However, neither the anti-discrimination nor the privacy provisions enshrined in these constitutions are particularly strong provisions, either in their scope or in their interpretation.

Privacy, for example, is not a well established ground of constitutional redress in the Commonwealth Caribbean, partly because it is not listed specifically as a right to privacy but is described or indeed, has been interpreted more in the nature of protections from search and seizure, specifically in the home. Further, even where privacy protection is located, it is easily circumscribed in the public interest.

The discrimination provisions in the various Constitution have also been weakened by the fact that it has been held in Trinidad and Tobago that malice is required to substantiate a claim of discrimination. In other instances where the ground of discrimination is not specifically mentioned in the Constitution, or where it is mentioned only in the preamble to the constitution and not in the body of the constitution, as with the ground of >sex=, the courts have found that such a ground of discrimination is not protected as it is not justiciable.

Notwithstanding the above constitutional obstacles, any laws purporting to make provision for or against those with HIV /AIDS must be measured against the constitution and if found to violate the constitution, may be struck down as ultra vires. This may be a useful tool in countering the state action doctrine and in attempting to create checks and balances for restrictive / sanction based laws on HIV /AIDS. These include laws pertaining to immigration, work-permits, notification etc.

Sexual Orientation

Sexual orientation as a ground of discrimination is also excluded both in the various constitutions and in the existing anti-discrimination legislation. Indeed, this is a controversial issue in the region. Consequently, while some persons still erroneously link HIV/AIDS with homosexuality, if a person is discriminated against because of such a link,  there is no specific protection which can be granted on that ground. Employers are seemingly free to dismiss or otherwise penalise persons because of their sexual orientation. It is only if such a reason can be brought under another heading of law, such as, for example, if such a reason is found to be unjust under unfair dismissal law, that redress can be sought successfully.

 

ILO legislative framework

Despite the proliferation of material coming from the ILO, it has been slow in formulating specific Conventions on HIV/ AIDS. Notwithstanding, several existing ILO Conventions can be used in a general way to encompass AIDS issues. For example, the Vocational Rehabilitation and Employment (Disabled Persons), can be utilised, under which AIDS can be treated as an aspect of disability law. In particular, this convention requires accommodation of the specific needs of the disabled and the need to protect against discrimination of such persons at all levels. Other relevant Conventions include the Termination of Employment Convention which requires a valid reason for dismissal and the Convention against Discrimination. Discrimination against persons with HIV has been of increasing concern to the ILO which has produced a Code of Practice on HIV /AIDS.

Under our legal systems international law which flows from the ratification of treaties or Conventions is not directly binding on the state. However, countries like ourselves which have signed these Conventions do have obligations to ensure that our law and legal practices are in conformity with them. Such obligations are being increasingly identified in Commonwealth courts.

 

Implied Terms

Courts have been willing to interpret contracts of employment to encompass unwritten terms where it is accepted that such unwritten terms are obvious inclusions to the contract, albeit unexpressed. This is an expanding and dynamic jurisprudence and can give considerable protection to HIV /AIDS sufferers. It is suggested that non-discrimination on the ground of HIV/ AIDS may be viewed as such an implied term of the contract of employment.

 In addition, more familiar implied terms may be interpreted expansively to include protections relevant to AIDS patients. Thus, rights to confidentiality may be inferred as an aspect of the duty toward trust and confidence. Other useful established implied terms include >the duty not to create a hostile environment= (including a stressful environment) and to provide a > healthy and safe workplace=.  Health here can include mental health, in this case, of the employee, to confront situations  where he or she is ostracized and humiliated at the workplace.

 

Compulsory Testing and Privacy.

As yet in the region there is no definite legal position on compulsory testing for HIV/AIDS. The exception is in relation to immigration. Further, insurance companies will require such testing and many workplaces require or provide insurance. This presents interesting dilemmas. Should  insurance companies  be prohibited from requiring compulsory testing? Should they be required to protect any AIDS information from disclosure? Should insurance companies be  prohibited from refusing coverage to AIDS patients particularly where it is required for the person to get the job? There is, of course, a well-known doctor -patient privilege of confidentiality, but it appears that this is easily subjugated in this context.

The issue of compulsory testing clearly invokes rights to privacy. However, we have already seen that the right is not adequately protected under the constitutions. Further, neither labour law nor other law address any abuses in this context. As a general principle, since AIDS involves complex social issues, there must be a balancing of conflicting rights, such as individual privacy rights v.s public safety; confidentiality v.s. freedom of speech/ the right to  information / the public interest. Such rights can easily succumb to the public interest or meet the usual constitutional threshold of justification in a free and democratic society.

We have noted previously that there is a >culture of silence= surrounding HIV/ AIDS. This has implications for privacy, strengthening the need for privacy protection and assurances.

The cases on privacy, compulsory testing and HIV are inconsistent as is the legislation from around the world. On the one hand, the insurance company is in the business of assessing risk and AIDS is just another such risk ( and there is certain death.) On the other, there is the argument that AIDS victims are not treated in the same manner as other persons with terminal illnesses such as cancer. It is to be noted, as an alternative approach,  that the route to protection on the ground of HIV under the American Disability Act prohibits denial of employment on the ground of projected high insurance, medical, health care costs in the future.

Women=s Vulnerabilities and HIV

Special note must be taken of the way in which HIV/AIDS affect women Bin the workplace and in the society at large. This is the subject of another paper but the issue is addressed here briefly.

As noted previously, the Commonwealth Caribbean has been documented as having one of the highest rates of HIV/AIDS in the world. Further, recent statistics demonstrate that women in the region, like elsewhere in the world, are especially vulnerable to contracting the disease.[6] ( In Barbados, for example, it is 3:1). This pattern means that in real terms many women in the region are suffering from the disease or will contract the disease in the future. Women=s susceptibility to HIV /AIDS is due to physiological as well as to social and cultural factors.

HIV /Discrimination and Women

The question of HIV /AIDS and women=s vulnerability to the disease is a subject intimately connected to the right of women to be free from discrimination. Thus, discrimination is a subject of great importance to the issue of women workers and HIV /AIDS.

The social and cultural factors which make women more vulnerable to HIV must be considered against the backdrop of women=s general unequal status in society and, in a specific context, in employment.

Rationales for this vulnerability in the employment sphere include their unequal earning status and employment opportunities, which make them more economically dependent on men and women=s heavy involvement in sex work. The ILO contends that the greater the gender discrimination in societies and the lower the position of women, the more negatively they are affected by HIV/ AIDS.[7]

Thus, women are impacted more negatively due to both social and economic factors although we see that the economic vulnerability is largely a function of the social factors. In terms of economic factors, for example, several may be noted:

(i) Women are still less readily employed than men, despite relatively higher qualifications;

(ii) When employed, women still earn less than men for equal work: This is true both in developed and developing countries (for equal work);

(iii) Women are still more unlikely to be unemployed or underemployed and found more often in forms of work which attract less pay and benefits, e.g. casual work, informal work (services Bwhether domestic, tourism etc.), part-time employment etc. B leading to the term the >feminisation of casual labor=.

All of this means that women are still economically fragile and often need to rely on men for financial support. It is therefore hardly surprising that they are unable to negotiate safe sex or no sex, even when HIV is a risk.

These discriminatory phenomena is as a result of women=s inferior status in society and must be confronted.

Women=s general unequal place in society is also manifested in their relationship paradigms: whether with casual sex, commercial sex or sex in formal, ostensibly >protected= relationships such as in marriage.

We are all familiar with the social patterns at play:

1. The man is in control of the sexual relationship, which renders it inherently unequal. There is a tendency of women to relinquish control over their bodies and sexual relations. ( The paradigm comes from the >Women were formed from Adam=s rib and were put on earth to serve men and husbands and thus should never say no B even when Adam clearly is an Eve or has many Eve=s);

2. Promiscuous men are >studs= but women are >loose=.

3. Women=s sexuality is a commercial and / or bargaining commodity.

4. High percentage of single mothers, many unemployed or underemployed (Barbados= 37%).

5. High degree of incest, mainly involving girls.

Women may also fall victim to more discernible patterns of discrimination when they have already contracted HIV.[8] This may be explained by cultural notions of what is  appropriate sexual behaviour for women and the consequent stereotyping when women contract a sex-related disease. The Adomakah UWI study showed female HIV/ AIDS patients suffered more discrimination in hospitals and even by female nurses. This is double jeopardy in that there is generally  more discrimination against women and  therefore an increased likelihood for HIV, but yet when women have the disease, they suffer more discrimination.

The UWI  Study even found discrimination by female HIV patients against other female HIV patients. There are, for example, distinctions between the way they >caught it; and they way >those women= caught it.  In reality, these are the same issues  of gender inequities and vulnerabilities.

These examples clearly demonstrate the social stigmas, double standards and general inequities at play. As such, adequate protection in relation to HIV/AIDS is particularly significant for women-workers.

In sum, the HIV/AIDS phenomenon exacerbates the already detrimental paradigm in which women are exposed to various forms of discrimination and unequal treatment in society and at the workplace.

We can see therefore that the goals of gender equality and gender empowerment have concrete implications for AIDS as gender inequality actually leads to women being more vulnerable to HIV.

Girl Children and HIV / AIDS

Such gender inequities also spill over to problems of child labour  where we find that  girl children are particularly vulnerable to HIV/AIDS. One reason is the higher incidence of child labour in relation to girl children, such labour often  amounting to sexual exploitation and statutory rape.

 

Free Movement of Workers and HIV

The CARICOM free movement of labour initiative brings into play a whole host of other issues pertinent to HIV.  The most obvious concerns immigration and the compulsory testing of non-nationals. Is this in sync with Caribbean integration and the free movement of labour? Non-nationals may not only be required to test for HIV but may be denied entry into a Caribbean neighbour country, whether for work or otherwise, if he or she is HIV positive.

Other issues to consider include the question of which government has responsibility for the care and treatment of migrant workers who have AIDS or are HIV positive? In addition, if workers have certain benefits in their home country, can they transfer these when they migrate to another Caribbean country for work purposes, what may be referred to as the >portability of benefits=? For example, some countries, such as Barbados, have more generous social benefits such as medical insurance, NIS benefits or even unemployment benefit. Will the HIV patient automatically lose these upon migration?

These are all important questions to consider as Caribbean nationals take full advantage of the more liberal trade and work arrangements within CARICOM.

It should be noted too that both our constitutions and administrative law jurisprudence under the common law give the State much leeway in its treatment of non-nationals or non-citizens, imposing a much lower threshold for the protection of rights than for other subject areas. It is not clear that in signing onto the CSME and related initiatives that Caribbean sovereign nations have abrogated these privileges and prerogatives in any way.

 

HIV /AIDS and Disability

AIDS is often discussed as part of the problem of disability discrimination and thus disability legislation may be used as a tool to address HIV/AIDS. The philosophy behind treating HIV/ AIDS within the parameters of disability law is that it is believed to share many of the characteristics of other disabilities. For example, discrimination on grounds of AIDS is based on fear, suspicion and ignorance, stereotyping etc. in the same way as with >ordinary= disabled persons. This includes how the disease is transmitted. Further, as with other disabilities, because of stigma, there are many misconceptions about the work capabilities of persons with HIV / AIDS, thereby pointing to the need for a type of affirmative action. Indeed, an AIDS infected worker may actually reach a point in the disease where he is physically disabled, is incapacitated.

In addition, it is felt that because disability law is relatively well developed, both internationally and domestically, it is a good legislative approach to the newer problem of HIV/AIDS. Disability legislation particularly effective in protecting problems related to access to employment. In some cases, quotas are even laid down for the disabled.

It should be reiterated that while we do not as yet have broad disability legislation such as the American Disability Act of the US, 1992, (ADA) as one of its specific objectives, the inclusion of HIV /AIDS as an aspect of disability, disability may be addressed under general anti-discrimination legislation, such as in Guyana and St. Lucia. Nonetheless, unlike the US approach, our meagre disability protections do not specifically include HIV/AIDS as a ground of disability and this will have to be inferred.

As with other areas of law important to HIV, the most important principle here is that  >reasonable accommodation= must be made at the workplace for persons suffering from HIV/AIDS or with a disability. The leading proponents of the disability approach are USA, Australia, Canada, South Africa. This is a possible legislative approach for the Caribbean.

The ADA covers all aspects of HIV including protecting persons who are falsely believed ( accused) of having HIV/AIDS, with the resulting discrimination that such a belief may bring.  This is because it examines the perceptions associated with HIV/ AIDS. For example, in Quebec Comm. v Boisbriand,[9], the meaning of disability was examined in relation to a handicapped person under the ADA. The court found that a handicap could be perceived subjectively under the meaning of the Quebec Charter of Human Rights and Freedoms. There was no need for a functional disability. It is enough that the person is perceived to be disabled, or that he perceives himself as being viewed as disabled. A Aliberal and purposive interpretation and contextual approach support a broad definition of the word handicap@ AA handicap may be real or perceived, and a person may have no limitations in everyday activities other than those created by prejudice and stereotype. Courts will, therefore, have to consider not only an individual=s biomedical condition but also the circumstances in which a distinction is made. A >handicap= may exist even without proof of physical limitations or other ailments. The emphasis is on the effects of the distinction, exclusion or preference rather than the precise cause or origin of the handicap.@

 

Conclusion

While the current legal climate for addressing problems of HIV / AIDS at the workplace is far from ideal, the views expressed in this paper demonstrate that there are indirect legal routes for approaching the existing problems, in particular, problems of discrimination, perhaps the most important area to address. It is hoped, however, that new, specific laws on HIV/ AIDS will soon be a reality across the region.

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