“ජරා ලෙඩ හදාගෙන එනවා මෙතන, උඹ පලයංල”
(Get out! You come here after contracting such filthy diseases.)
This was the manner in which Kumudini was treated after being diagnosed with HIV. The Matron of the hostel, run by the plastic recycling company Kumudini worked for went so far as to physically push her while she retorted thus.
Kumudini didn’t know she had contracted HIV from her boyfriend, who was working in the same plastic packaging company. Even when he died neither she nor the employers had any inkling. A year later Kumudini was taken by her employer, without prior informing, to be tested for HIV.
“They didn’t tell me where they were taking me and why,” says Kumudini, which is not her real name. The diagnosis came back HIV positive and what ensued is pretty much the same dilemma all HIV positive people face: Discrimination and subsequent termination. In the case of Kumudini it was not so much a termination, but a forced resignation.
Recently an employee of a leading national airliner filed a Fundamental Rights petition in the Supreme Court seeking an order directing the company to reinstate him as cabin crew. He was apparently terminated after the company learned he was HIV-positive. Most HIV positive people do not know that they are afforded the same protection by the law as those otherwise healthy. And it is a lesser known fact that people who are on anti viral meds have very little chance of actually transmitting the virus.
“In fact, 95 per cent of the HIV transmissions are sexually transmitted, one per cent is through blood transfusion, intravenous transmission through using infected needles for injections and by drug addicts,” said National STD/AIDS Control Programme Director, Dr. Sisira Liyanage. “There are over 35 million people living with HIV in the world at this moment. What are we supposed to do with them? Round them all up and wall them in?”
He maintained that people who are on anti viral meds have very little chance of actually transmitting the virus. “HIV is suppressed by meds and hardly even detected through microscopes. Besides, the National HIV policy clearly states that being HIV positive does not prevent someone from engaging in any occupation.” He reiterated that medically speaking to sack someone for being HIV positive is highly questionable.
Legal Research Unit director and Colombo University Law Faculty senior lecturer A Saraveswaran clarified that bullying at the workplace is in fact commonplace.
Legal protection afforded to employees of the government sector and private sector differs according to Saraveswaran. Government sector includes both public and semi government sectors.
“There are provisions in the Constitution for the protection of employee rights of the public and semi government sectors,” said Saraveswaran.
In case of a termination of a public or semi government sector employee due to HIV, it is deemed discriminatory under the equality clause of the Constitution where every citizen is entitled to the equal protection of the law. “Even HIV positive people are entitled to equal protection of the law. An employee cannot be terminated for simply being HIV positive”, said Saraveswaran.
As in the case of Kumudini, many HIV infected people are often bullied to the point of voluntarily handing over their resignation. “Bullying, ill-treatment and degrading treatment of HIV positive people can be considered as torture, which is in violation of the constitutional provision on freedom from torture and degrading treatment”, Saraveswaran further explained. He said that if bullying is done by an individual in an official capacity, it is in contravention of the Constitutional provision on freedom from torture and degrading treatment.
“If that is the case, the victim has two options. He or she can file a Fundamental Rights case in the Supreme Court for violation of all these clauses. Or they can appeal to the Human Rights Commission”, said Saraveswaran.
In fact, two of the objectives of the National Policy on HIV and AIDS in the World of Work in Sri Lanka is to “ensure a supportive working environment without stigma and discrimination for workers and their families and to protect the rights of those infected and affected”.
People who work in the private sector are afforded protection under labour laws of Sri Lanka. Such a person if terminated for being HIV positive can file a case in the Labour Tribunal for unjustified termination, within six months of termination according to Saraveswaran.
“The Labour tribunal can either order the reinstatement or compensation as an alternative to termination”, said Saraveswaran.
The other option is to the Labour Commission. In the case of bullying, ill-treatment or degrading treatment in a private institution of an employee because he or she is HIV positive, the matter can be taken up as an industrial dispute. “In such a case, the employee can appeal to the Labour Commissioner as it comes under the mechanism for settling industrial disputes under the Industrial Disputes Act”, Saraveswaran said.
As a member state of the UN, Sri Lanka has an obligation to ensure non discrimination to uphold the principles in the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights (ICCPR) and the ILO Convention.
One of the fundamental principles of the policy is that no screening should be done for purposes of employment. But this being a policy and not law, it is not legally binding. When asked whether there is any legal provision that prohibits an employer from imposing an HIV test on an employee, Saraveswaran admitted that there is nothing to that effect. “The requirement of a test depends on the nature of employment”, he said. “For example, if the employee is working in a medical laboratory where he or she comes into contact with human bodily fluids, the employer may deem it necessary to require an HIV test. But this does not warrant discrimination or terminating an employee.”
Saraveswaran declared that the employer has no right to disclose the health status of an employee or make it public.
National Policy on HIV and AIDS in the World of Work in Sri Lanka states that “in special situations where employees may have the possibility of being exposed to HIV, such as in health care settings, there are standard infection control procedures to be followed and that there should not be any discrimination on the basis of real or perceived HIV status for recruitment or at any stage of employment”.
At a time when Sri Lanka is expecting to secure GSP Plus, it is vital to eliminate all forms of discrimination, according to Saraveswaran. “We have to comply with these international standards, especially UN instruments related to Human Rights and the ILO Conventions both in law and practice”, he said.
He reiterated that the judiciary should play an active role in protecting the rights of HIV positive people. “Only through elimination of discrimination can we encourage HIV positive people to come out and seek medical help and counseling”, said Saraveswaran.