HIV and Workplace rights

Mr Emmanuel Ejiogu Onuhikemi, an employee in Smridu Nigeria Limited catering department had in 2017 filed a suit against his employers for terminating his appointment when his company discovered he was HIV positive. In the suit, he claimed he was subjected to frequent medical tests during employment and in the course of such test, he had tested positive for HIV/AIDS. His departmental manager had told him to “go home and take care of himself” and that he would be contacted in due course. Mr Emmanuel claimed he was never contacted again and thus considered his employment to have been constructively terminated.

Though they have a compulsory workplace HIV/AIDS policy, the respondent (Smridu Nigeria Limited), denied the allegations and claimed the applicant had refused to come to work on its own volition, presumably due to self-stigmatization and low morale following the test results. The company also stated that it still considered the applicant to be its employee, as it had not terminated his employment contract.

In its ruling, the Industrial Court had held that the respondent’s policy of compulsory HIV/AIDS testing was capable of creating an atmosphere of fear among its employees, which could contribute to the spread of the disease, as employees with HIV/AIDS are likely to be reluctant to disclose their status for fear of losing their jobs. The court further held that such compulsory/mandatory testing has infringed the applicant’s fundamental rights and dignity. The court awarded damages against the respondent for breach of the applicant’s fundamental human rights.

READ ALSO: Lab tests for HIV

Nigeria passed a law to prohibit HIV test as a pre-condition for employment in 2015. The law give a boost to HIV and workplace rights.

In February 2015, then President, Goodluck Jonathan signed a new anti-discrimination bill into law that protects the rights and dignity of people living with HIV.

The HIV/AIDS Anti-Discrimination Act 2014 makes it illegal to discriminate against people based on their HIV status. It also prohibits any employer, individual or organisation from requiring a person to take an HIV test as a precondition/prerequisite for employment or access to services.

We will make an example of employers making HIV test job condition- NACA boss

The Director-General, National Agency for the Control of AIDS (NACA), Dr. Sani Aliyu, in an interview he granted the Punch Newspaper, talks tough on this controversy/form of discrimination. He also spoke on HIV and workplace rights.

PUNCH: The law against discrimination of persons living with HIV has been on for over five years but most states have not passed the law thus making implementation difficult. Does NACA meet with stakeholders including the labour unions to ensure that people with HIV are not discriminate against at the workplaces?

His answer:

“I think it is very unfortunate. The issue of stigma and discrimination is something that really continues to worry me because we cannot effectively tackle HIV if some people are still living with the stigma. I have never met anyone who willingly went out of his way to contract HIV. People don’t a have choice when it comes to HIV. Most people get it accidentally. Why should you stigmatize that person? There are other infections that people should run away from rather than HIV. Ebola, Lassa fever and even Hepatitis B is a hundred folds more infectious than HIV. Tuberculosis is more infectious. If you see someone with HIV on the road, you may not even notice because people are doing so well managing it. We in NACA will definitely not tolerate stigma and discrimination. We have done a lot of work with in the recent past with people living with HIV who had issues with their employers.

We have supported them with legal persons.We have also been working on some schools because there are children living with HIV that are been prevented from accessing schools. That is unacceptable. Certainly, if we are aware of anybody who has been discriminated against, where employers are making HIV test a condition for employment, it is illegal. There are certain categories of jobs which a person can be made to undergo such testing. In Medicine for example, you will not be allowed to do exposure prone procedures if you have HIV unless you have a suppressed viral load and you have been tested over and over again. That is different. But if you are a driver, if you are a desk officer or an administrator, what is the business of your employer with your HIV status? We will definitely make an example of employers that we know are trying to continue with this trend because it is unacceptable. You are dealing with human beings and everybody has right to life, to family and employment and having HIV does not make you less human. I call on schools and employers of labour to know that there is a law against discrimination and if they flout that law, we will support the employee in taking them to court and make sure they get justice.

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International Law Office (ILO)




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