Chapter IV of the Nigerian Constitution prescribes some inalienable fundamental rights for citizens. Some of the rights that have implications on employment include the right to personal liberty, the right to private and family life and the right to freedom from discrimination.
However, with specific reference to discrimination against people living with HIV and AIDS, it is a special enactment gazetted and signed into law on the 28th of November, 2014 by former President Goodluck Jonathan, titled “HIV AND AIDS (ANTI-DISCRIMINATION) ACT, 2014. Part 1, subsection “f” listed one of the objectives of the Act as giving effect to the fundamental human rights of citizens as listed in Chapter 4 of the Constitution.
Part 3 (1) of the HIV AND AIDS (ANTI-DISCRIMINATION) ACT states specifically that “People living with or affected by HIV or AIDS have a right to freedom from discrimination on the basis of their real or perceived HIV status concerning access to and continued employment, employment benefits, comprehensive health services, education, use of public facilities and other social services, provided by the employer, individual, community, government or any other establishment.”
Section 9 (1) of the Act prohibits and makes it an offense to use an HIV test as a pre-condition for employment.
The Act further stated in Section 14 sub-section 5, that real or perceived HIV status shall not be a cause for termination of employment.
From the above citations, it would be seen that Nigerian Law provides protection for people living with HIV and AIDS, in fact, it is an offense to discriminate against them in employment matters, entitlement to benefits and such knowledge real or perceived should not be a basis for the termination of their employment.
WHAT SHOULD AN ORGANIZATION DO WHEN AN EMPLOYEE IS DISCOVERED TO BE HIV POSITIVE?
It is important to state from the start that as an employer or HR practitioner it is not in your place to tag or ask an employee for his or her HIV status it is against the law and punishable with dire consequences. Section 8 (1) made this clear.
However, where an employee chooses to voluntarily disclose his or her HIV status such knowledge or information shall not be disclosed to a third party except with the written consent of the person making the disclosure or when such information is at the instance of the law court.
Section 4 (1) gives the employer a duty of care at ensuring that he or she protects an employee living with HIV or AIDS from and against any form of discrimination.
In the case of the earlier questions asked by the reader, we should settle the matter by now that discrimination against people living with HIV and AIDS is against international and local laws that attract huge fine as well as prison sentences or both.
In the duty of care, section 15 specifically states that “every employer has a duty, as far as it is practicable, to provide a safe workplace and this shall include ensuring that the risk of occupational exposure to HIV is minimized” at the workplace. And, this will include protection of the person living with HIV, protection of fellow employees from contracting HIV and the protection of customers that come in contact with the organization.
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