Thursday, February 2, 2017

HIV screening and the hiring process

Bestfriend called up a while ago to just ask about things and update me on his job search. He's in the restaurant management industry and aiming for higher position.

Throughout the conversation, he told me that this one classy cafe asked him to do an HIV test during the hiring process. I stopped him short and asked to repeat what he said. Apparently, even if he knows my condition, he doesn't know that what he underwent was illegal. So I told him to go in with how he went through the process. In sum, it went like this:

He was asked to do a medical test with HIV test in it. It was done outside (I'm not sure if it was the diagnostics laboratory affiliate of the cafe with its hiring process). The HIV counselor did the routine interrogation as regards his last sexual contact. My bestfriend answered. He was told that if the medical staff won't give him a text message the following day, it meant that he was non-reactive; that if he received a text, then that was it. Following day, no text received. Just to make sure, he called the laboratory and indeed the counselor, through phone, told him that it was non-reactive.

I could not but stress that what he went through was--under clear provisions of the law--illegal; that's clear under Sec. 35 of RA 8504. Bestfriend could not believe that it was illegal. I reassured him that it was unfair and illegal and I could not just imagine the emotional rollercoaster any applicant had to go through with that kind of policy. True enough, he was nerve-wracked during the testing because if the result comes out as reactive, he wouldn't know what to do and how to go on with the the employment process.

I told him different scenarios--to attack and to defend--the cafe's policy on HIV screening during the hiring process.

1. It's no brainer under the law that what is prohibited and set down in clear words should not be done directly or indirectly. RA 8504 has a prohibitive provision, which means "Bawal gawin" (the antonym is "positive provision").  And I quote, Sec. 35: "Discrimination in any form from pre-employment to post-employment, including hiring, promotion or assignment, based on the actual, perceived or suspected HIV status of an individual IS PROHIBITED." (Emphasis supplied)

2. It does not matter if the result of the prospective employee is non-reactive. Even if the result turns out negative, it is not an argument that no law was violated. Ubi lex non distinguit, nec nos distinguere debemus. Where the law does not distinguish, we ought not to distinguish. Since there is nothing set down in the law which provides for distinction, we should not create arguments that since bestfriend was found negative, then no law was trespassed. The only thing that the law prohibits is when there is discrimination.

3. As regards, discrimination. One may argue that it is not the HIV testing during the hiring process that is prohibited. It is actually discrimination. Point taken. But that creates a confusion when the law is applied. Sec 3 of RA 8504 does not define what "discrimination" is, which makes things confusing. Because if, for example, X was found to be reactive after submitting himself to the medical test, and he was denied application to the job, since the law does not define what discrimination is in connection to HIV testing, it creates a legal loophole. The employer may reason out that the employee is not accepted because he fails in certain qualifications, when in truth and in fact, it was his status that was the basis of his non-acceptance. This is what we call in law as, "What cannot be legally done directly cannot be done indirectly."

1. The cafe is in the food and beverage industry. Perhaps the only reason they wanted to enforce such policy is not to discriminate but to actually enforce higher protection in food preparation. Since not all food requires exposure to fire which kills the virus (e.g. salad, drinks, etc) the cafe may have been only be well-meaning when it enforced HIV screening in its hiring process; this is to make sure that if a PLHIV will be employed, he will be given the best area to work on with lower risk of being wounded (i.e. knife cuts).

2. The cafe may also be providing higher premiums to its PLHIV employees. The only course though that they may know who is positive from who is not is by subjecting its applicants to a screening. This is highly a conjecture and supposition. So even if my bestfriend is not applying for a position in the kitchen (he is applying a managerial/supervisory position), still he is asked to undergo the screening.

The only reason that I can see where HIV testing in hiring procedure is defensible is when the HIV status imposes high risk on the job. The "rational connection" as the Labor Code provides. If there is higher risk of exposure to other people because of the job's nature, then HIV screening may be argued as to why it is needed. For example, when the job requires to deal with sharp instruments or food preparation or in healthcare or even in some industries, like bars or clubs or brothels, that is, the "entertainment" officers.

Always remember that you have a choice to back out from the hiring process if it comes along with HIV testing. Once you submit to the testing knowing fully well that you are already positive and that the position you are applying for does not have any connection with HIV exposure, the employer may argue (if in case in the future you complain) that you WAIVED your right to privacy. Waiver of a right is a direct and voluntary loss of any future claims against someone. Ginusto mo eh. Bakit ka magrereklamo ngayon? So when it appears to you that you have higher risk of being detected as PLHIV, weigh your pros and cons. And when you believe that being undetected is more important than a job in that company, stop and discontinue the process. There may be loss of job opportunity on your part, but you still did exercise your right to privacy and confidentiality.

P.S. I was surprised and disappointed to know that that cafe is employing HIV screening in its hiring process. Okay pa naman doon.

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