by Fola Kareem / Temisan Otis / Michael Ogunjobi
On the 16th of February 2015 a new anti discrimination bill was signed into law that protects the rights and dignity of people living with HIV. The HIV/AIDS Anti-Discrimination Act 2014 makes it illegal to discriminate against people based on their HIV status. It also prohibits any employer, individual or organization from requiring a person to take an HIV test as a precondition for employment or access to services.
This landmark legislation makes provisions for the prevention of HIV-related discrimination and provides for access to healthcare and other services. It also provides for protection of the human rights and dignity of people living with HIV and those affected by AIDS in Nigeria.
The new law is a source of renewed hope that all acts of discrimination against people living with HIV such as recruitment and termination of employment, denial of access to services including healthcare, education, association and other social services will be quickly reduced and ultimately ended
In a relatively short period, the pandemic of HIV/AIDS has become one of the most critical issues in workplaces in our time. In June 2013, The National Agency for the Control of Aids (NACA) disclosed that 3.4 million Nigerians were living with HIV/AIDS, making Nigeria the second largest country with AIDS globally. Nine out of ten persons living with HIV belong to the working age group 15-49 years, usually the most productive group in any society.
Of note, it is on record that of over 170 million Nigerians, about 3.5 million Nigerians are living with HIV. This number includes pregnant women and toddlers. This breakthrough legislation has portrayed the commitment of the Nigerian government to end the AIDS epidemic by 2030. However, the questions begging for answers are as follows: What is the feasibility of zero new HIV infections, zero AIDS related deaths and zero discrimination? In addition, whether or not HIV/AIDS epidemic should be accorded greater attention than other epidemics? Furthermore, whether or not the legislation won’t be a mere piece of paper not deserving of the pulp graciously accommodating it?
As part of the fight to control the spread of the deadly virus through legislation, it is hoped that the law will create a more supportive environment, allowing people living with HIV to carry on their lives as normally as possible in a country where more than three million people are known to be living with the virus. The law is the latest addition to Nigeria’s commitment to end the AIDS epidemic by 2030.
The origin and surrounding circumstances of HIV/AIDS status raises troubling issues that are steeped in prejudice. AIDS-related stigma and discrimination refers to prejudice, negative attitudes, abuse and maltreatment directed at people living with HIV/AIDS. In the work place, people living with HIV/AIDS have been discriminated against through practices such as pre-employment HIV testing, dismissals for being HIV positive and denial of employee benefits. There is an increasing number of discrimination cases against HIV positive persons in work places. They are either denied employment by most companies, while those who were employed before knowing their status are known to have been sacked or where they are not sacked, are not allowed access to treatment as often as required. This is a clear case of injustice which must not be allowed to continue.
It is ignorance that fuels stigmatization of People Living With HIV/ Aids (PLWHA), exposing them to ridicule, disgrace, verbal, physical and other forms of abuse in private and public settings. It was noted by Leonard Rubenstein, JD, Physicians Human Rights (PHR) Executive Director that “The health sector is not immune to the kind of virulent discrimination that has hurt people with HIV/AIDS for many years. It is a very serious impediment to adequate AIDS treatment and affects the willingness of people with HIV to come forward”. Consequently, only a few people desire to know their serostatus while those who know their serostatus are unwilling to disclose, thereby increasing the spread and impact of HIV/AIDS. The Act will hopefully encourage more people to access treatment without the fear of being stigmatized.
The Act aims to protect the rights and dignity of people living with and affected by HIV and AIDS and sets out rights of employees in the work place and responsibilities of employers to employees living with HIV/AIDS to create a safe working environment for all employers and employees. It also prohibits refusal to admit persons into schools or public office, or denial of access to worship areas, use and access to communal places, denial of access to credit, loans or insurance services and so on.
Responsibilities of Employer
Every employer must take steps to promote equality and non discrimination on the basis of HIV status and other related disease and that ‘reasonable accommodation’ should be provided for an employee living with or affected by the virus or disease. The Act provides that the no employer shall require an employer to disclose his/her HIV status or make HIV testing a precondition to offer of employment. In circumstances where failure to take such test constitutes a clear and present danger of AIDS/virus transmission to others the employer needs to show certification by two competent medical authorities of such. The bill also places a duty of confidentiality on employers when an employee voluntarily discloses his/her HIV status as such information can not be disclosed without the employees written consent or without the employer taking all necessary steps to confirm that the employee wishes to disclose his/her status unless disclosure is required by law. It emphasizes that all persons living with HIV and AIDS have the right to privacy with respect to their health and medical records.
The Act also places an obligation on employers to report all occupationally acquired HIV infections to the Minister from the date of discovery and any victim shall be entitled to compensation. Failure to report leaves the employer liable to a fine of at least N100,000 or a imprisonment up to a year or both.
Rights of Employees
In general the Act protects persons living with HIV/AIDS from being discriminated against by employers for example with the right not to disclose his/her HIV status or with respect to eligibility to occupational or other benefit schemes provided for employees.
Where any of the rights of the employee set out in the Act has been contravened, the employee reserves the personal right to bring a civil action in court against any employer or person but should communicate his/her intention to do so in writing to the Minister of Labour and Productivity along side the petition.
Ousting HIV/AIDS stigma and discrimination in the work place is the first step of many, to create a more compassionate environment for people living with HIV. The major benefit the Act will bring about for people living with HIV is that this gives them a platform to live their life as they normally would without fear that HIV will affect them in this way. This Act should create more social cohesion with people living with HIV, thus adding to their quality of life. People will no longer be in fear of having to mandatorily disclose their serostatus for employment reasons.
On the other hand, with it being said that this Act is set to bring about positive changes, as with any new legislation, the means of enforcement is always uncertain. The bill sets a fine or imprisonment for those who do not comply, however, it must be said this must be a tough law to govern and regulate across all levels of employers. Although, it may be easy to enforce this bill among the larger, more industrial companies, it will be more difficult for people looking to work for or who are working in smaller businesses. HIV is likely to be more prevalent among those with lower socio-economic status, with this in mind, will such people have the means or funds to bring a company in breach of this law to justice.
In 2006, a study conducted by Physicians for Human Rights (PHR) revealed Discrimination by Health Professionals Against People Living with HIV/AIDS is fueled by fear of infection due to lack of protective supplies, the government should also ensure the provision of protective supplies and to continue to ensure quality education and counseling to care-workers to increase knowledge of disease and significantly reduce the fear and stigma behind the virus and disease. A brilliant way to enforce the law would be to introduce government funded talks and counseling sessions to businesses, schools, institutions to increase awareness of the law in place and of HIV/AIDS itself.