1. Living with HIV Know Your Rights Disclosure in school and daycare The information contained in this publication is information about the law, but it is not legal advice. For legal advice, please contact a lawyer in your region. © Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca 7

2. © Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca This presentation complements the brochure Living with HIV: Know your Rights #7 Disclosure in school and daycare. Copies of the brochure are available at www.aidslaw.ca.www.aidslaw.ca The information contained in this presentation is information about the law, but it is not legal advice. For legal advice, please contact a lawyer in your region. The information contained in this presentation is current as of 2014. Funding for the Living with HIV: Know your Rights series was provided by the Public Health Agency of Canada. The opinions expressed in this presentation are those of the authors/researchers and do not necessarily reflect the official views of the Public Health Agency of Canada. Introduction

3. © Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca Disclosure in education and childcare is governed by a complex array of provincial, territorial and federal laws and regulations. It is important to remember that HIV is not transmitted through casual contact. Children do not catch HIV by going to school or sharing toys, food and drink with someone who is infected, so there is usually no reason for a school to require disclosure. Introduction

4. © Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca 1. When do I need to disclose my child’s status to a school or daycare? In most cases, there is no legal obligation to tell a school or daycare that your child has HIV. Whether you disclose your child’s HIV status at school or daycare, and to whom, should be entirely up to you. Your child’s personal health information, including HIV status, is private, personal information. The only time there is a need to inform school authorities of your child’s HIV status is if it is required for the protection of the child or the public. In the unlikely event that this notification is necessary, school authorities should keep to an absolute minimum the number of staff members who are made aware of your child’s condition.

5. © Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca 2. If I tell someone at school or daycare that my child has HIV, do they have to keep it confidential? 1. Do I have to tell my employer that I have HIV? If you disclose your child’s HIV status to a school authority, or they become aware of that information through another source, that person must keep this information confidential. However, in some provinces, school authorities are legally obligated to report a student in the school who has or may have HIV to the Medical Officer of Health. If you disclose your child’s HIV status to a daycare provider, they are also obliged to keep this information confidential, unless you consent to disclosure. In most provinces and territories, the legal obligation to keep your child’s HIV status confidential does not apply to a classmate or any other person who is not acting in an official capacity.

6. © Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca 3. If I tell someone at school that my child has HIV, will it be recorded in my child’s school file? School authorities are required to safeguard students’ medical information. A school authority may record HIV status in your child’s student record, but this information should remain exclusively with specific school staff in a secure filing system to protect your child’s privacy. In some jurisdictions (e.g., B.C. and Ontario), health information may be kept together with your child’s academic record. However, access to this information should be limited to designated school personnel. 1. Do I have to tell my employer that I have HIV?

7. © Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca 4. What if I haven’t yet told my child yet that they are HIV-positive, but the school, daycare or other caregiver knows? If your child’s caregiver works in an official school or daycare capacity, the caregiver has the same legal obligation to keep your child’s HIV status confidential, including from the child. In most provinces and territories, this legal obligation does not apply if your child’s caregiver is not acting in an official school capacity (e.g., as a babysitter).

8. © Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca 5. When do I need to disclose my child’s HIV status in other settings? As with school and daycare, in most cases there is no legal obligation to disclose your child’s HIV status in other settings (e.g., to a babysitter, during a sleepover, to a sports coach) because HIV is not transmitted through casual contact. The only time there is a need to inform others of your child’s HIV status is when required for the protection of the child or the public. 1. Do I have to tell my employer that I have HIV?

9. © Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca 6. Will my child’s activities be restricted as a result of HIV-positive status? Children living with HIV should be able to participate in a full range of activities without restriction. There is no risk of HIV transmission through casual contact between a child living with HIV and other children. In some provinces, the Medical Officer of Health may find that there are special circumstances (e.g., behavioural or neurological conditions) that necessitate some restriction. However, the need for any possible restrictions on your child’s activities should be reassessed periodically by the Medical Officer of Health and the child’s physician. Regardless of whether a school or daycare is aware of any children living with communicable illnesses among the students or children in its care, standard precautions should be employed in all cases where there is contact with blood or bodily fluids.

10. © Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca 7. Can my child’s school accommodate my child? A school has a duty to accommodate a child living with a disability to allow equal access to school services, up to the point of “undue hardship.” If you request accommodation from your child’s school, you will be required to provide information about your child’s disability-related needs and limitations. In most cases, this does not require you to inform school authorities of your child’s HIV status. There is no blanket approach to accommodation and a school must accommodate each student’s unique needs. If the school believes providing the accommodation will cause the school “undue hardship”, the school must provide evidence to prove it. The relevant factors are: cost outside sources of funding health and safety

11. © Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca 8. What protection does a person have against discrimination and harassment at school? Most schools, formal childcare providers and school boards have extensive policies and procedures in place to address various forms of discrimination and harassment. Your child’s teacher, principal or the director of the daycare centre may therefore be the best people to speak with first in order to find support for your child and to stop the harassment. Under human rights law, you are protected from HIV-related discrimination and harassment (which is considered a form of discrimination) at school. If you believe your child is being discriminated against or harassed at school, you can make a complaint to the relevant human rights commission. Many complaints are settled through mediation. If mediation efforts are unsuccessful, the commission will decide whether to refer the case to a human rights tribunal for a hearing. If the commission decides not to refer the case to a tribunal, it will be the end of the complaint.

12. © Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca 1. Your 2-year old is living with HIV and in daycare. Another parent has told you about a child in the same daycare group who has a tendency to bite other children. Once, this other child drew blood after biting another toddler. You are concerned about HIV transmission. What should you do? 2. Your child is “out” about his HIV status at school. So far, the other students have not treated him differently as a result, but he just started the fourth grade and in his new class, there is a student who constantly taunts him about being HIV-positive. Is this discrimination and what can you do about it? Scenarios

13. © Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca Canada’s human rights laws prohibit discrimination based on disability when providing services, including education. HIV and AIDS are considered disabilities under the law. This means that a school cannot inquire about your child’s HIV status, just as it cannot ask about your child’s religion or other similar personal characteristics. It would be unlawful discrimination for school authorities to request this information as a condition of acceptance or continuation in the school. Conclusions Whether you disclose your child’s HIV status at school or daycare, and to whom, should be entirely up to you.

14. © Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca Thank You Canadian HIV/AIDS Legal Network www.aidslaw.ca Phone : +1 416 595-1666 Email: info@aidslaw.ca