HIV in the workplace – an overview
Some 70% of people living with HIV in Switzerland, are employed, most working 90% or more. An overview of the most important points about HIV in the workplace.
There are about 20,000 people with HIV living in Switzerland. Every year 500 – 550 additional people learn that they have contracted the disease. Most of these are of employment age. Thanks to medical improvements since the mid-1990s, quality of life for HIV positive people has greatly improved. Such advances allow many people with HIV to lead normal lives over the course of decades, and to maintain or regain their accustomed ability to work. Some 70% of people living with HIV in Switzerland, approximately 14,000 individuals, are employed, most working 90% or more.
(Quelle: Deutsche AIDS-Hilfe)
Risk of infection
The actual risk of HIV infection is often exaggerated. Indeed, there is no risk of infection whatsoever at the typical workplace, since the HI virus (= HIV) can be transmitted neither by way of non-sexual human contact, such as shaking hands, embracing and kissing, nor through the sharing of foodstuffs, crockery or cutlery, towels and toilets, among many other things. For most professions, the risk of infection can be completely ruled out, and is considered miniscule even in the healthcare industry: in the case of penetrating wounds, studies show that the rate of transmission is less than 0.3% even if the source of the injury is a person who is HIV positive. Given this exceedingly low risk of infection by way of routine work processes, there are no professions in Switzerland that could legitimately exclude employees living with HIV.
Admissible questions during job-application process
During an application process, employers may only ask questions directly related to the relevant conditions of employment and pertinent to the contract in question (cf. Art 328b CO). These may include questions about education and training, professional experience, and specific knowledge and skills. Personal questions about a candidate’s state of health, sexual orientation, political allegiance, religion and the like are not admissible as long as they are not directly relevant to the employment contract at issue. Such questions, including of course any direct inquiries about an applicant’s HIV status, constitute a breach of personal rights (cf. ZGB Art 27ff.) and may with impunity be answered falsely by the job applicant.
HIV positive job applicants are obliged to inform a future employer about health limitations only in those cases when the applicant knows in advance that he/she will be unfit to work for the number of hours stipulated in the job description. The job applicant is, however, under no obligation to divulge the specific condition responsible for such limitation.
Should an employer request a medical screening, which is rarely the case, such a procedure is usually carried out by a company’s private medical service, whose task it is to ascertain whether or not the applicant’s state of health permits him or her to take up the position in question. The private medical service may not demand an HIV test and may only inform the employer whether or not the applicant is healthy enough to carry out the duties of the position applied for.
Under the Swiss Code of Obligations employers are legally obliged to continue payment of salary to an employee for a restricted period of time in case of sick leave, provided the employment has lasted for more than three months or a period of more than three months has been contractually agreed upon. Many employers cover this risk by taking out insurance for the continued payment of salary in the case of prolonged sickness, the so-called collective daily-benefit insurance
Because sickness benefits do not fall into the category of compulsory insurance, the law permits the insurer to check an applicant’s state of health and, within the framework of risk exposure, to exclude those with existing illnesses. Most insurance companies, however (some 75% of such institutions, predominantly the larger ones) forgo health tests and cover all employees irrespective of their state of health and without health-screening tests.
Occupational pension schemes
In an obligatory occupational pension scheme, no provisos can be made on the basis of existing illnesses. Things look somewhat different in the case of additional occupational pension funds. Here the insurers can enquire into the insured’s state of health and may in the case of HIV infection insert a proviso. In the event of a change of pension fund, the new pension company must take over the provision time in its entirety (cf. Art. 14 Law on Free Movement of Persons).
As in the case of all other health-related data, a diagnosis of HIV falls under one’s personality rights, and as such is protected under the Data Protection Act. This means that without explicit permission of the HIV positive person or without court injunction this serostatus may not be disclosed to a third party. Should this occur, the disclosing party seriously contravenes the Data Protection Act. This may lead to prosecution and the HIV positive subject can lodge a charge in a court of Civil Law against any future breach of the Data Protection Act, as well as compensation and indemnities.
Absences and medical check-ups
The HIV infection generally has no influence on work performance. In order to check the state of the immune system and viral load in the blood, people with HIV are advised to have regular check-ups (generally every three months). Should these check-ups only be possible during regular working hours, employees should be allowed such absences without salary deductions.
Thanks to developments in the medical treatment of HIV, an HIV positive employee does not get sick more frequently than any other employee. Nevertheless, some medicines can, when first administered, have strong side effects, which, as a rule, tend to subside or disappear altogether after two to three weeks.
Employers have the right to request a medical certificate from employees who are absent from work. Detailed justification of such absences need not be given. An employer may not request additional information from the consulting physician.
Discrimination and "mobbing" (workplace bullying)
People with HIV are often subject to discriminating behaviour or "mobbing" (Workplace bullying) at their place of work. Mobbing can have far-reaching consequences for a victim’s self-esteem and may lead to disorders both psychological and physical. Discrimination and "mobbing" are often the expression of erroneous assumptions, prejudice and ignorance. Information and open communication within a company are, therefore, of great importance in helping to allay irrational fears.
Discrimination against co-workers on the basis of real or assumed HIV infection is prohibited. The Swiss Code of Obligations requires an employer to protect all employees from attacks on their privacy (cf. Art. 328 CO).
An employee may not be given notice purely on the basis of his/her infection. As a rule, HIV status has no influence on work performance and is, therefore, considered an employee’s personal attribute, dismissal on the basis of which is unlawful (cf. Art. 336 CO).