Discrimination on the basis of a person's Human Immunodeficiency Virus ("HIV") or Acquired Immune Deficiency Syndrome ("AIDS") status is prohibited by statute in the Philippines. Employers should ensure that employees diagnosed with HIV or AIDS receive equal treatment.
The Philippine AIDS Prevention and Control Act of 1998 ("Act") and the Guidelines for the Implementation of HIV and AIDS Prevention and Control in the Workplace Program ("Guidelines") impose obligations on employers in relation to HIV- and AIDS-positive employees. The key obligations are set out below.
Non-discriminatory policies and practices
Internal policies and practices must be non-discriminatory. This means that employers:
- cannot require compulsory HIV or AIDS testing as a precondition to employment;
- cannot terminate the employment of an employee on the basis of the employee's HIV- or AIDSpositive status;
- must take reasonable measures to accommodate employees with HIV or AIDS (such as by providing flexible work arrangements); and
- constitute a safety and health committee to periodically monitor and evaluate the company's internal policies and practices.
The maintenance of confidentiality is crucial. Employers cannot require employees to disclose their HIV/AIDS status. Where an employee's HIV/AIDS status has been disclosed (whether voluntarily or inadvertently) to the employer, any information and records pertaining to the employee's HIV/AIDS status must be kept confidential and the employer must take steps to prevent any further dissemination of such information and records.
Information, education and training
The Guidelines require employers to:
- provide standardized basic information and education on HIV/AIDS, which must include the following topics:
- the magnitude of the HIV/AIDS epidemic;
- the nature and causes of HIV/AIDS and their modes of transmission;
- how to prevent HIV/AIDS infections;
- diagnosis and treatment of HIV/AIDS;
- the impact of HIV/AIDS on the individual, families, community, and workplace;
- the company's internal workplace policies and programs on HIV and AIDS;
- salient features of national laws and policies.
If feasible, employers should provide treatment services for any sexually transmitted infections to minimize the risk of further infection. If the provision of such treatment services is not feasible, employers must at least provide access to such services.
Under the Act, workplace discrimination against persons diagnosed with HIV "in any form from preemployment to post-employment, including hiring, promotion or assignment, based on the actual, perceived or suspected HIV status of an individual" is a criminal offence. Sanctions include the following:
- a breach of confidentiality requirements is punishable by imprisonment of between 6 months and 4 years; and
- discriminatory acts and policies are punishable by imprisonment of between 6 months and 4 years, and a fine not exceeding 10,000 Philippine pesos (approximately US$200).
Over and above these criminal penalties, the Bureau of Working Conditions can also impose fines on errant employers, and recommend non-renewal of their business permits.
To avoid sanction, employers should ensure compliance with legal requirements. Internal policies and practices relating to the management of HIV- and AIDS-positive persons (regardless of whether such persons are job applicants, existing employees, independent contractors, and so on) should be reviewed regularly.