May people face violations of their rights in their day-to-day lives. To help you become more aware of your rights and understand the legislature, we are launching our “Know your rights” column with lawyer’s practical advice where you can ask your questions to get detailed answers. Now, our first question: what shall you do if your employer wants you to disclose your HIV status?
The Ukrainian labor law prohibits employers to request any personal information, including health information and HIV status, at conclusion of a labor agreement. However, in fact, unfortunately, cases when managers of companies or institutions request a certificate proving HIV-negative status, thus directly violating the labor law, are common.
What can you tell the employer in response to their demand for a test for HIV?
- If an employee is demanded to take a test confirming his/her HIV-negative status, the employee should state that HIV testing is a right, not a liability referring to Article 6 of the Law of Ukraine “On preventing dissemination of diseases caused by human immune deficiency virus (HIV) and legal and social protection of people living with HIV” (further – the Law) which defines the right of people for testing to detect HIV, the terms and procedures of conducting the testing. The Article states that “testing shall be performed on voluntary basis, with confidentiality of personal data, including the data on the health status, ensured.”
- The information on HIV test results is strictly protected, regardless of the status. The HIV test results are disclosed by the responsible employee of the facility which conducted the test only to the person who took the test, and in cases defined by the Law – to parents or other legal guardians (Article 7 of the Law), with confidentiality of information duly secured.
- The Law guarantees protection of information about positive HIV status from publicizing and disclosure to the third persons (Article 13 of the Law). The information about HIV test results and HIV status is confidential and constitutes a medical secrecy which can be revealed to other third parties only upon court decision in cases defined by law.
- Termination of employment, refusal of employment and restriction of other rights based on HIV status are prohibited. Unlawful actions of officials in this regard can be appealed administratively and in court. You should explain to the employer that you can and will appeal the employer’s refusal to hire you based on your HIV test in court.