Despite the Government’s efforts to tackle the stigma and discrimination surrounding HIV/AIDS, through a national workplace policy, some employees are still facing an uphill battle, largely as a result of misinformation.

The Ministry of Labour and Social Security Ministry (MLSS) confirmed last week that seven cases of wrongful dismissal and discrimination against persons living with HIV/AIDS have been brought to its attention since January.

It said that between January and October, it received seven cases of HIV-related dismissals through its redress mechanism.

Four of the cases are in the preliminary stages while the individual in the fifth case has asked the ministry to refer the matter to the Industrial Disputes Tribunal, after three unsuccessful attempts at conciliation.

Permanent secretary in the MLSS, Colette Roberts Risden, noted that failing that referral, the case may be brought to open court.

In the sixth case, the employer settled and a compensation package was agreed upon, while in the seventh matter, the complainant was reinstated, Roberts Risden informed.

Roberts Risden advised that the companies involved in these cases were “engaged in relation to their HIV Workplace Policy development and invited to enroll under the ministry’s Voluntary Compliance Programme”.

The 2012 National Workplace Policy on HIV and AIDS leans heavily on the outcome of deliberations on the HIV-related provisions in the Occupational Safety and Health (OSH) Bill, which is currently before a joint select committee (JSC) of Parliament. The HIV provision in the Bill is intended to shape regulations regarding HIV/AIDS in the workplace.

The policy was approved by Parliament in 2013, as a framework for action by the state, and employers and workers to address the treatment of employees with HIV and AIDS in the workplace.

But compliance is voluntary, which means companies have to come forward to agree to develop their own individual workplace policies in tandem with the national policy.

Policy and advocacy officer at Jamaica AIDS Support for Life (JASL) Patrick Lalor said the reality is that a vast number of companies had not signed on to the policy. “Presently maybe close to about 300 (have signed on) and that’s like a drop in the bucket. So we still have matters that we have had to reach court with, with people being dismissed form their jobs because of their HIV status,” he explained in an interview with the Jamaica Observer.

He pointed out that some employers were still requiring that prospective employees be screened for HIV, as well as for continued employment.

According to the National Workplace Policy on HIV/AIDS, HIV testing should be carried out voluntarily as per the International Labour Organization Code of Practice on HIV/AIDS, which mandates that: “No worker should be made to undergo mandatory testing for HIV, that is any routine medical testing or examination before or during employment”.

The ILO code says all persons living with HIV/AIDS have the right to privacy and are therefore not legally bound to disclose their status to their employer, or co-workers

“We still have a lot of companies that are violating the policy. It’s very widespread…we have cases dealing with from prominent companies,” Lalor stated.

He said that some people report the breaches but do not pursue the issue out of fear of their status being exposed. “Not all the companies blatantly dismiss them but they literally force them out, make the situation so unbearable for them that they resign,” he said, pointing to one such case.

Under the policy, it is intended that worksites, including informal workspaces, should develop and implement their own policies and programmes to protect workers living with the disease, and assist in reducing the spread of HIV and prevention of HIV/AIDS-related stigma and discrimination.

The permanent secretary acknowledged that the ministry has had mixed results in regards to the implementation of the National Workplace Policy on HIV and AIDS, which has yielded greater success in the hospitality and service industries than any other sector.

Government Senator and trade unionist Kavan Gayle expressed disappointment that activities under the policy seem to have fallen off over the years, as the problem of discrimination on the job still persists.

He emphasised that the policy needs to be revitalised, given the numerous changes in the work environment.

“A lot of things would have changed,” he told the Sunday Observer, pointing out that many employers are now asking employees for intimate personal information. He said having received that data it could work against employees in the future, in some instances.

Senator Gayle said that this is one of the reasons why he is calling for the fast-tracking of the Data Protection Bill, which is also before a joint select committee of Parliament. That JSC recently discussed the provision in the Data Protection Act which makes it unlawful for employers to ask employees to supply health records as part of the terms of their contract.

Legislators argued that for some jobs, it may be critical for employees to disclose their health status in situations where others may be put at risk.

In the meantime, Roberts Risden assured that the ministry has been monitoring activities under the policy through its Voluntary Compliance Programme (VCP), which is administered by the OSH department, with numerous workplace interventions that support and promote policy on HIV and AIDS.

According to the permanent secretary, “The HIV Unit has assisted numerous organisations in crafting their workplace HIV polices to ensure adherence to the 10 key guiding principles outlined in the National workplace policy. Organisations enrolled in the VCP are periodically audited to assess their implementation of local HIV policy”.

Furthermore, she said the MLSS periodically submits work plans and budgets to the Ministry of Health and Wellness for approval of grant funding assistance from the Global Fund for HIV-related workplace initiatives aimed at promoting the policy on HIV and AIDs.

She pointed to the most recent initiative, a collaborative workshop for 39 workers and trade union representatives held in October, to address the handling of grievance procedures and redress mechanisms.

The labour ministry said some employers were averse to supporting the policy implementation because of the myths surrounding HIV/AIDS. “This is consistent with the findings of the Humans Right Baseline Assessment Report 2019 which revealed that stigma and discrimination continues to retard Jamaica’s progress in its fight against HIV National response,” Roberts Risden said.

Another hindrance to implementation, which the MLSS said employers identified, is a difficulty establishing the link between occupational safety and health and HIV in the workplace.

The national policy sets out a checklist for policy development and implementation in the workplace, which includes establishing a HIV/AIDS committee representative of all categories of workers, to coordinate and implement a workplace policy.