1. Living with HIV Know Your Rights Disclosure at work 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 1

2. © Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca This presentation complements the brochure Living with HIV: Know your Rights #1 Disclosure at Work. 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 2013. 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 1. Do I have to tell my employer that I have HIV? In most cases, you do not have to tell your employer or anyone you work with that you have HIV. Whether or not you disclose your HIV status at work, and to whom, should be entirely up to you. Almost all jobs pose no real risk of transmitting HIV to anyone else. Therefore, you have no legal obligation to disclose your status. If you work in a health care setting, there may be some exceptions to this general rule that you don’t have to disclose.

4. © Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca 2. When I apply for a job, can an employer ask me if I have HIV or make me take an HIV test? 1. Do I have to tell my employer that I have HIV? 2. When I apply for a job, can an employer ask me if I have HIV or make me take an HIV test? No, an employer can not legally ask your HIV status as a condition of employment, including on a job application or in an interview. An employer can ask questions to assess your ability to perform the duties of the job and in some cases can require a medical exam after making an offer of employment. e.g., are you physically able to lift heavy objects an HIV test should not be included Although it is against the law, some job applications and interviewers still ask about specific questions. Think ahead of time about how you will answer those questions.

5. © Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca 3. What about if I work in the health care field? Do I have to tell my employer that I have HIV? In some healthcare-related jobs there may be a (small) risk of HIV transmission in carrying out certain job tasks. e.g., performing certain medical procedures Because of this, there may be special requirements about HIV disclosure set out by your profession’s regulatory body. e.g., College of Physicians and Surgeons; College of Nurses These requirements are specific to each profession and may also vary between provinces/territories. Any such requirement to disclose can only be justified if your specific job duties pose a real risk of HIV exposure to someone else.

6. © Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca 4. Do I need to disclose that I have HIV to my professional regulatory body? The professional regulatory bodies for some health care workers may require that members of that profession disclose their HIV-positive status in certain circumstances where there is a risk of HIV exposure e.g., surgeons, nurses or dentists performing “exposure-prone procedures” Regulatory bodies may put in place certain monitoring requirements and practice restrictions for members who have HIV (or another communicable disease). 1. Do I have to tell my employer that I have HIV?

7. © Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca 5. Do I need to disclose that I have HIV to my patients or clients? Generally speaking, there is no legal obligation to disclose to your patients or clients. In the unlikely event that a possible exposure occurs, the patient or client should be informed so that he or she can seek medical advice about testing and whether to consider post-exposure treatment with anti-HIV drugs (“PEP”). A sex worker who does not disclose his or her HIV-positive status to a client might face criminal prosecution. (For further information on the criminal law and HIV exposure, see www.aidslaw.ca/criminallaw.) www.aidslaw.ca/criminallaw

8. © Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca 6. Do I need to disclose that I have HIV to my co- workers? No, you do not need to disclose that you have HIV to your co-workers. 1. Do I have to tell my employer that I have HIV?

9. © Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca 7. Can I be fired because I have HIV? No. In Canada, human rights laws protect people against discrimination based on disability. Living with HIV is considered a disability. An employer is not allowed to treat an employee in a different, negative way because of his or her disability. In Canadian law, there is also a duty of accommodation. Accommodation in the workplace means reasonable adjustments are made in order to remove barriers that prevent persons with disabilities from participating fully. It is not considered discrimination if an employer fires you because, even with accommodation, you are unable to perform the essential functions of your job.

10. © Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca 8. Can my employer (or my employer’s insurance company) refuse to provide me with health or disability benefits because I have HIV? Your employer (or the insurance company) can not refuse to provide you with health or disability benefits because you have HIV as opposed to some other health condition. Many group insurance plans have “pre-existing condition” clauses. If you were HIV-positive before you started working for the employer, these plans may require you to pay an additional charge for coverage, may require a period of time to pass before you make a claim related to the pre-existing condition, or may exclude any coverage at all for expense related to the pre-existing condition.

11. © Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca 9. Do I have to disclose I have HIV to claim benefits under my workplace insurance? You will need to provide medical documentation in order to claim benefits. Your doctors may therefore need to reveal specific conditions and diagnoses to the insurance company when you apply for benefits or submit a claim form. If your paperwork will pass through the hands of your employer or someone in your human resources company, you may prefer to submit it in a sealed envelope or send it directly to the insurance company. 1. Do I have to tell my employer that I have HIV?

12. © Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca 10. If I request accommodations at work or need time off, do I need to tell my employer it is because I have HIV? 1. Do I have to tell my employer that I have HIV? To request accommodation, you do not need to provide a specific diagnosis to your employer. You will likely need to provide medical documentation of the specific limitations or requirements that you have in order to be able to perform the essential duties of your job.

13. © Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca 1.You have been living with HIV for more than 10 years and have an undetectable viral load. You decide that you want to pursue a career as a police officer. You discover that the application form to join the local police force asks if you have any communicable diseases such as HIV or Hepatitis C. What will you do? 1.You have not told your employer or anyone you work with that you are living with HIV. Lately you have not been feeling well and your doctor has suggested that you should work shorter hours and take frequent breaks? What options do you have? Scenarios

14. © Canadian HIV/AIDS Legal Network, 2014 www.aidslaw.ca Which laws apply to your situation depends on where you live and for whom you work. Consult a lawyer, legal clinic or your union representative for guidance. Conclusions In most cases, you do not have to tell your employer or anyone you work with that you have HIV. Whether or not you disclose at work should be entirely up to you. In practice, it is often difficult to control the flow of information in the workplace and legal remedies are limited if a breach of privacy occurs.

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