Labour Law (Employers)

How can I provide support for an employee living with HIV? Who needs to know that an employee is HIV-positive? This is where you will find all that you, as an employer, need to know about HIV in the workplace.

iStock/Tarik Kizilkaya

There are around 20,000 people living with HIV in Switzerland . Each year, between 400 and 500 more people find out that they are infected. Most of them are of working age. Medical progress has significantly improved the quality of life of those living with HIV, and their life expectancy is becoming ever closer to that of the general population. This means that, nowadays, many people with HIV are able to live normally and maintain their ability to work for years if not decades.

How can I support an employee with HIV/AIDS? Where can I get help?

People with HIV often face discriminatory behaviour and workplace bullying in their everyday working lives. The bullying, in particular, can have a major impact on the self-confidence of the person concerned, and lead to mental and physical illness. Discrimination and bullying are often rooted in wrongly-held perceptions, prejudice, and ignorance. Information and open communication within the company are thus vitally important, and can help to break down unfounded fears.

Discriminating against employees on the grounds of a real or assumed HIV infection is illegal. Under the Swiss Code of Obligations, employers have a duty to safeguard their employees' personality rights.

The Swiss AIDS Federation will be happy to provide reading material and is also willing to hold information courses for staff. The Federation's legal information office is also available to answer legal questions. Your regional AIDS support organisation is the body to contact if anyone needs personal counselling in connection with HIV and AIDS.

Who needs to know that a employee is HIV-positive?

The fact that someone is HIV-positive is highly personal and confidential information that may not be passed on under any circumstances without that person's express consent, or a court order. This principle is enshrined in the Swiss Data Protection Act, the Swiss Civil Code, and the Swiss Code of Obligations. Anyone violating it is committing a punishable breach of personal privacy and data protection.

What risk do HIV-positive employees pose to their colleagues and customers?

None, because there is no risk of infection from normal workplace activities. HIV cannot be transmitted via interpersonal contact such as shaking hands, hugging, kisses, sneezing or coughing in someone's direction, or via the shared use of telephones, computers, cutlery, crockery, hand towels, toilets, etc. Even in the medical sector, in which there is occasionally contact with other people's blood, the risk of infection can be ruled out almost entirely by following the proper rules of hygiene.

What's the risk of employees with HIV being unable to work because they are sick?

As a rule, being infected with HIV will not affect a person's ability to work. However, in order to keep an eye on the strength of the immune system and the viral load in the blood, it is recommended that people living with HIV have regular medical check-ups. If these check-ups can only be done during regular working hours, employees should be allowed to attend appointments without any deductions being made from their salary.

Advances in medical treatment mean that people living with HIV scarcely become ill any more frequently than other employees. That said, some drugs can have strong initial side-effects, although these will generally lessen or disappear entirely within two to three weeks.

Employers have the right to demand a medical certificate from employees who stay away from work, but the reason for their incapacity does not have to be stated. Employers are not permitted to ask doctors for any information.

What questions can be asked as part of the application process?

As part of the application process, employers may only ask questions that are directly concerned with the future employment relationship, and are of relevance to the ultimate employment contract. Asking about an HIV infection constitutes an infringement of personality rights, and the applicant is not required to answer truthfully.

HIV-positive applicants are required to notify their future employer of their status only if they are not able from the start to work all of the hours planned for the advertised position.

If an employer orders a medical suitability test, the applicant must go to the doctor appointed by the company. The latter's task is to estimate whether or not the applicant's state of health permits them to take the role. They are not allowed to demand an HIV test, and their report must be limited to telling the employer whether or not the applicant's state of health permits them to take on the planned job.

How does HIV status affect pension fund cover and daily sickness benefits insurance?

Mandatory occupational pension cover may not impose any provisos or waiting periods for pre-existing conditions. The rules for extra-mandatory cover differ, however. Here, insurers may ask questions about health, and may impose a waiting period on the grounds of an HIV infection. If an employee moves pension funds, the new fund must credit them with the full term of the waiting period that has already lapsed.

Since daily sickness benefits insurance is not compulsory, the law allows insurers to check the health of applicants and exclude those with pre-existing conditions as a form of risk selection. That said, most insurance companies do not conduct such health check-ups, and include all of a company's employees, irrespective of their state of health.

Can I sack an employee because of their HIV status?

An HIV-positive employee cannot be sacked on the grounds of their infection alone. HIV status generally does not affect a person's ability to work, and is thus counted as a personal attribute, which is protected. Terminations on the grounds of personal attributes are unlawful.