Working is a major part of daily life; it provides sustenance and comfort, new bonds with others, and allows for growth, both socially and personally. For numerous reasons, people living with HIV face many obstacles when looking for employment even though their HIV status is protected by the Charter of human rights and freedoms. HIV status is confidential, and any discrimination based on this status during a hiring process, in working conditions, when seeking a promotion, or when being dismissed is illegal.
If you are seeking information about group insurances offered by certain employers, we invite you to read our article on Insurances.
1. Workplace Disclosure: a choice, not a requirement
HIV status is confidential, which means it is up to each person to decide when, how, and to whom they disclose their status (all within the limits of the law). It is not required that you disclose your HIV status at work. It is therefore, a strictly personal decision.
Read our article on HIV/AIDS and reportable diseases
2. Pre-employment Health Questionnaire
First and foremost, a future employer cannot inquire as to your health except in circumstances where the common nature of the work requires specific physical abilities. The employer cannot use such a questionnaire to choose the healthiest candidate.
Additionally, the only questions that can legally be asked are those pertaining to the abilities that are necessary in order to accomplish the job’s tasks. This is called a Bona Fide Occupational Requirement (BFOR) and it is up to the employer to demonstrate that a certain physical ability is required in order to be able to accomplish the work. To this date, no employer has successfully proven that an HIV negative status is a Bona Fide Occupational Requirement. Therefore, any questions regarding your HIV status are illegal.
Moreover, questions regarding the name of your physician or your medication can also be illegal. Questions regarding your medication are only admissible if they are pertaining to any negative side-effects that could have an impact on your health and safety at work.
An employer cannot require access to a candidate’s medical files. Employers often ask this on medical questionnaires, therefore you should not hesitate to strike out this section and sign your initials beside the stricken section, showing you do not consent to such access.
What to do in cases of direct or indirect questions about HIV status:
- It is permitted to not reveal your HIV status without fear of repercussions because the Commission des droits de la personne et des droits de la jeunesse has declared that in order to justify a firing, a false statement has to pertain to a Bona Fide Occupational Requirement.
- It is possible to disclose your HIV status, while simultaneously reminding your employer that an application cannot be rejected on the basis of HIV status.
- It is also permitted to refuse to disclose or lie about your HIV status. However, this is not without consequence. Lying can be seen as breaching your duty of loyalty towards your employer, who, on this basis, could impose reprisals such as suspension, dismissal, etc. Nonetheless, this does not bar a seropositive person from filing a claim on the basis of discrimination if the person in question is able to demonstrate that the reprisal methods were strictly founded on their HIV status.
It is up to you to choose the method with which you are the most comfortable.
3. Pre-employment Medical Exams
Similarly to health questionnaires, medical exams prior to hiring should only verify that you have the abilities necessary to be able to accomplish the required work. Thus, a medical report made by a doctor or a nurse in these circumstances should only say one of the three following phrases:
- The candidate is fit to do the required work.
- The candidate is fit to do the required work with certain accommodations (e.g. an adapted work space, etc.).
- The candidate is unfit for the required work.
It is recommended to inquire as to the nature of the tests and examinations being conducted by the health professional and which abilities they are verifying that you either possess or do not.
HIV tests are not permitted. Also, consent is required for a blood sample to be drawn and if a blood sample is required, it is recommended to ask which tests will be carried out and to only consent to those specific tests and no others. Any testing for viruses for which consent has not specifically been given (such as for an HIV test) would be illegal.
4. Medical Certificate, Medical Exams & Absenteeism
HIV positive status may require an employee to be absent more frequently than the average employee, which can draw questions from an employer. An employer can require a medical certificate justifying this higher level of absenteeism while also verifying the employee’s ability to return to work. However, this requirement must be used sparingly by employers and only when they doubt the cause of the absenteeism: for example, when the absences are for prolonged periods of time or where the employee has a right to disability insurance or payed leave.
In order to keep your HIV status confidential, you can ask your doctor to simply write on the certificate that the absence is justified by a chronic illness, by the effects of treatments for this chronic illness, by the need to receive chemotherapeutic treatments, etc. It is recommended to speak with your doctor in order to find a sentence that is both truthful but also discrete. The certificate should indicate that the employee is now able to return to work and include restrictions if there are any. Regardless of what is written on the certificate, its contents are confidential and the employer must protect the confidentiality of this information.
The employer may in certain circumstances require a medical exam. This can include when the certificate is incomplete, too brief, or if the employer has reasonable motives to believe that the certificate contains false information. The medical exam should only be sought to determine the justification for the absence and nothing else.
5. Medical Certificate, Medical Exams & Return to Work
It can be justified for an employer to require a medical certificate or medical exam after a prolonged absence from work or a convalescence period. This is to verify that the employee is fit to return to work and resume their regular responsibilities. They are also seeking to find out if the employee requires any accommodations. The same rules that are applicable to a pre-hiring exam are applicable in this circumstance: the employer can only verify that you have the abilities that are necessary in order to be able to accomplish the required work.
6. Workplace Accidents & Occupational Diseases
If an employee is victim of a workplace accident or an occupational disease, it can be justified for an employer, who will then have a higher CNESST premium, to inquire as to the nature of the accident or disease. Therefore, the employer may have access to your medical history in order to demonstrate that the work you did is not in question. However, only information relevant to the accident or the occupational disease will be transmitted to CNESST. Any non-relevant information will be erased from the file. It is recommended that you ask your doctor what information is relevant for the purpose of the claim and what should be removed from the file as not relevant (such as HIV status).
VIH INFO DROITS does not provide legal advice or counsel.
The information in this document is not intended to council the public, and does not replace the services of a lawyer.
Although we monitor legal developments, we cannot guarantee that the information presented here is up to date. COCQ-SIDA cannot be held responsible for any damages resulting from the use of the information contained in this document.