Introduction
The first Human Immunodeficiency Virus (“HIV”) infection was detected in India in 1986, and currently, India has about 2.3 million people living with Acquired Immunodeficiency Syndrome (“AIDS”). AIDS is not only life-threatening but, unfortunately, also results in the discrimination and stigmatization of the affected individuals and their families. This has far-reaching economic and societal consequences. Due to the lack of knowledge of the disease, affected individuals are often deprived of livelihood opportunities or face ostracism at the workplace.
Legal rights of HIV positive individuals recognized
The good news is that Indian law provides HIV positive individuals with legal rights and remedies against discrimination.
In the landmark case of MX of Bombay Indian Inhabitant v. ZY and Ors. (AIR 1997 Bom 406), a casual labourer working in a public sector undertaking was made to undergo a medical examination, which revealed that he was HIV positive but otherwise fit to work. However, he was terminated from his employment. The affected individual challenged the termination, contending that it was a violation of his fundamental rights to equality, livelihood, life and liberty.
The Bombay High Court held that a person cannot be deprived of his right to livelihood simply because he is HIV positive, if he is otherwise capable of performing his regular duties and does not pose a threat or health hazard to other persons or property at the workplace. Several other High Courts have also taken a similar stance in subsequent cases.
In the MX case, the court recognized the stigma associated with HIV and AIDS, and as a result, the identity of the aggrieved employee was kept private during the course of the hearing. In several other cases, HIV-positive individuals have chosen to not disclose their identity.
The HIV AIDS Act
Finally, in 2017, the Parliament enacted the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 (the “HIV AIDS Act”). Set out below are some salient aspects of the HIV AIDS Act, which all employers should keep in mind:
- Right to employment: An HIV positive individual or any person who is or was residing with an HIV positive individual (each a “Protected Person”) cannot be denied employment or be terminated from employment.
- Right against discrimination: A Protected Person cannot be unfairly treated at the workplace. Further, persons cannot propagate hatred towards Protected Persons, generally or specifically, on account of HIV positivity.
- Right to insurance: A Protected Person cannot be denied insurance unless supported by actuarial studies.
- Right to privacy: A Protected Person cannot be compelled to disclose his HIV status except by an order of the court. Further, if an employer or any other employee at the workplace happens to know about the HIV positive status of a particular employee, the employer or other employee cannot disclose this to any third parties without the prior written consent of the HIV positive employee.
- Health checks: HIV testing cannot be a pre-requisite for obtaining employment or for the continuation of employment.
- Grounds for termination: A Protected Person can be terminated from employment only if: (i) a qualified and independent healthcare provider provides a written assessment of the Protected Person stating that he/she poses a significant risk of transmission of HIV to other persons in the workplace, or is unfit to perform the duties of the job; and (ii) the employer provides a written statement stating the nature and extent of administrative or financial hardship for not providing the Protected Person reasonable accommodation. If the written statement from the healthcare provider cannot be obtained, it is presumed that there is no significant risk and that the Protected Person is fit to perform the duties of the job. Likewise, if the written statement from the employer cannot be obtained, it is presumed that no undue administrative or financial hardship is being faced by the employer.
- Safe working environment: Every establishment engaged in healthcare services where twenty (20) or more individuals are employed and every establishment engaging one hundred (100) or more individuals, where there is a significant risk of occupational exposure to HIV, have the duty to ensure a safe working environment, including providing safety equipment, training and preventive medication.
In conclusion, all employers must ensure that they strictly comply with the HIV AIDS Act and create a safe working environment for HIV positive individuals. These policies must be specifically included in the HR manual of every company. In addition, if an HIV positive individual is being terminated for reasons other than his health status, due process must be followed, failing which the company runs the risk of getting embroiled in long-drawn litigation.
About the Author
N. Raja Sujith has more than 23 years of experience in corporate and commercial law, including foreign investment, technology, outsourcing, joint ventures, M&A, restructuring and insolvency, and real property law. He also represents private equity and venture capital funds, and start-up companies in their financial investments, due diligence, and documentation. He has been recognized as one of the leading corporate/M&A practitioners in India. He has co-authored this update with Sinjini Majumdar, Associate at Majmudar & Partners.