What should an employer do if an employee has HIV? HIV and work. Legal aspects

When hiring a person with HIV, employers look at four main factors.

What would you do if you found out that a colleague you interact with every day at work has HIV? In fact, this is quite possible, because most people infected with the virus do not report this to the employer, which they have every right to: discrimination against people with HIV only on the basis of their diagnosis is a violation of federal law.

HIV is not a death sentence, you can live with it for more than 25 years, and this is not the limit. And yet the HIV virus is an "immune roulette". Adults living with HIV are well aware that life has its limits. And many of them perceive their diagnosis as an incentive to live and work more actively.

“I am 25 years old, I have had HIV since 2002. II disability group, a pension of 2000 rubles, pills and injections according to the schedule,” says the participant. - Behind shoulders - work experience as a store manager. I am willing and able to work, though not full-time and perhaps not every day. Sometimes there are health problems, you have to stay in the hospital, go for pills ... It's hard to hide all this. And I’m tired of hiding my diagnosis for 5 years.”

HIV is a human immunodeficiency virus that causes viral disease- HIV infection, the last stage of which is known as acquired immunodeficiency syndrome (AIDS).

AIDS develops in only a small percentage of people who are HIV-infected, but even these people modern medicine can already help.

Generally speaking, there are only three ways of HIV transmission: sexual, through blood, and from an HIV-positive mother to a child (complete educational program can be carried out). HIV infection does not pose a danger in everyday life and during ordinary contacts, even for people who communicate closely, not to mention colleagues. “On the contrary, you threaten us more than we threaten you,” they say on the Rabota.ru forum. “Your colds are much worse for us than for you.”

By official statistics, currently in Russia 417 thousand 715 HIV-infected people are registered. For 12 months of 2007, 44,444 new cases of HIV infection were detected. Don't think they're all drug addicts or random people. sexual life.

Discrimination against people with HIV based on their diagnosis is a direct violation of their rights and freedoms, lawyers remind.

However, the company, having learned that a person has HIV, will not meet him with open arms. Some people are still convinced that the virus is transmitted by household and airborne droplets, and carriers of the infection are paying for their immoral behavior. “I know one thing: I won’t work with infected people, I won’t hire them, if I find out, I’ll fire them,” the forum participants say. “If I found out about an HIV-positive colleague, I would quit. I think many of my colleagues do too.”

Those who are especially suspicious on this basis even develop neurosis - speedophobia: “And if we go on a business trip and have an accident, and the blood of an infected person gets into my wound?”

HIV test

“In 2002 I was diagnosed with HIV. It was very hard to come to terms with the idea of a positive status, especially considering that I was infected in the hospital. But the moment came when I decided to live on, - says a participant in the Rabota.ru forum. - I am proud of the people who helped me, and of myself too, that I had the courage and strength to cope. I was able to identify other values in life and learned not to give up. Now I'm doing what I love - working with staff. Nobody knows about my status."

In almost all cases, HIV is not a reason to leave your specialty. Even if you are a chef. Professions “closed” for HIV-positive people are stipulated in the Federal Law “On Preventing the Spread of the Disease Caused by the Human Immunodeficiency Virus in the Russian Federation”.

If you do not want the company to know that you have HIV, you can not speak - do not break the law. And if they ask for a certificate, you know: in without fail Only medical staff of health care institutions working with HIV-positive people, staff of laboratories for testing for AIDS and other employees of enterprises whose work is related to HIV, and staff of obstetric and gynecological departments are tested for HIV.

That is, if you get a job, for example, in a cafe and the personnel department requires you to bring a certificate with the result of an HIV test, you can refuse. If the personnel officers continue to insist, contact them for written explanations (they will come in handy if the case goes to court), and the test will most likely be deleted from the direction.

Some ministries and departments (as well as the republics) on their own initiative expand the circle of specialists who must be tested for HIV infection. The test is passed by aviation personnel, customs officers, many railway specialists (conductors, employees of dining cars, refrigerated trains, etc.). However, this is a violation of federal law.

Work compatible with treatment

Under certain indications, treatment of HIV infection is prescribed. Every day at certain hours a person must take medication. Some panic: “How to hide from colleagues a huge cloud of pills and injections that need to be injected and taken strictly on time?” However, there are many diseases for which you have to take medication. HIV is the last thing your colleagues will suspect you of.

“I am at Stokrin, with my head floating from time to time,” says an HIV-positive forum participant. But no one knows about my status. I take therapy right at work, sometimes even at a meeting. Like, “I drink contraceptives”, “the doctor ordered me to drink a course of vitamins.” You can pour Stokrin into a Vitrum jar. And injections - this is how insulin is injected with diabetes, you can hide behind this. ”

When looking for a job, people with HIV who have begun to have tangible health problems (for example, received a disability), you need to pay attention first of all to the schedule and workload. You can get a job as an insurance agent, auditor, sales representative - this work does not imply a permanent presence in the office. Many to avoid negative attitude get a job in social services for work with HIV+.

If it is physically difficult to be in the office, find a remote job, become a freelancer. You can take courses and work as a bild editor, do programming, photography, collaborate with magazines (for example, Stepan Kaletra, the head of the “Life with a Plus” section of the KVIR magazine, has a positive status).

Illegal dismissal

Sometimes HIV-positive people have to stay on sick leave for a long time due to comorbidities.

As a result of an all-Russian survey conducted in the spring of 2008, VTsIOM found out that How can attitudes towards a person change if he receives an HIV-positive status?.

If it were infected close friend or a family member, 35% of respondents would not change their attitude towards him. But if this happened to a work colleague or housemate, only 23-24% would retain their previous attitude. Ready to provide help and support: relative - 28%, colleague - 16%, neighbor - 14% of respondents. They will pretend that nothing happened, but internally change their attitude for the worse: with a relative - 19%, with a colleague - 28%, with a neighbor - 23%. They will reduce their communication to a minimum: 4% - with a relative, 14% - with a colleague, 23% - with a neighbor.

Among young people, the percentage of those who assure that they would not change their attitude towards an HIV-positive colleague is higher. This was the answer of 26% of 18-24-year-old respondents and only 17% of those aged 60 and older.

23% of Russians reported that during last year tested for HIV, 75% did not.

Are you sure you are HIV negative?

It happens that the management issues an ultimatum: either the employee goes to work, or he is fired. But even if the sick leave does not close for 3 months, this cannot be a reason for dismissal.

Those who, for health reasons, can no longer perform previous job, the employer is obliged to transfer to an easier one. If there is no one in the organization or you didn’t like it, you will have to part by mutual agreement. If you are still able to work, the boss has no right to impose another position on you.

The management may try to get rid of an employee with HIV by "bringing" the illegal dismissal under one of paragraphs 81 of Article TC: it will begin to record all the mistakes, set impossible tasks. If you are sure that the reason for dismissal is your diagnosis, you can apply to the court and the labor inspectorate with an application for the restoration of violated rights, compensation for material damage and compensation for moral damage.

If you are recognized as completely incompetent, then you need to quit not on own will(as managers sometimes suggest), but on the fact of disability. In this case, you will be paid a severance pay in the amount of two weeks of average earnings.

In case, despite your disability, you get a job: you (and the organization that will accept you) are entitled to benefits. But it is necessary to concretize the diagnosis.

What companies think about employees with HIV

Not all employers, when they find out that a candidate has HIV, roll their eyes in horror. Many prefer a reasonable approach. When deciding whether to hire a specialist with HIV, they pay attention to four points.

1. Professional quality . “The main thing is the efficiency of a specialist and his need for the company,” believes Ekaterina Gripas, Deputy Director for Human Resources, Finam Investment Holding.

2. The attitude of a person to his disease. According to Anna Mikheeva, Administrative Director of RU-CENTER, some people are sick both physically, and psychologically, and emotionally. Others perceive their illness as a chance to become stronger, to overcome their internal conflicts and difficulties, to become a whole person.

“Such a person, faced with the need to constantly fight for his life, can be more mature and stronger both personally and in professionally. His motivation may be much stronger, and the resource that he is ready to offer may turn out to be incomparably greater, despite physical ailments. I know cases when people with incurable and incurable diseases worked in the company - they made a huge contribution to the cause.

Rabota.ru forum participant: “We can be better employees because we have rethought our goals and aspirations. We work for the result, not being distracted by trifles. I know what I want to achieve. HIV as a stimulus keeps me from going astray.” By the way, she has no problems with work and earnings.

3. physical possibilities.“I see only one limitation when hiring a specialist with HIV - whether he can work according to the proposed schedule. This applies to any chronic diseases associated with visiting doctors, undergoing examinations, ”says a recruiter from the Rabota.ru forum.

4. The opinion of the immediate supervisor. Ekaterina Gripas: “Most likely, I would have conveyed information about his illness to the head of the specialist (I think there would be no hard negativity - we have intellectual employees). If he had no objections, the employee would have been hired.”

Deciding whether to get the opinion of other employees or keep required level confidentiality, Ekaterina Gripas would choose the second option, because HIV is not among the diseases transmitted through personal contact. “I would advise HIV-positive professionals to accept their situation,” she says. “Be able to see yourself as a full-fledged and full-fledged specialist and person.”

HIV or Acquired Immunodeficiency Syndrome is a disease against the background of severely reduced immunity, unable to withstand the onslaught of any, even the most primitive infection. Unfortunately, society still treats people with HIV positive status with apprehension and mistrust, and they do not know whether it is possible to hiv infection work in one industry or another. This significantly reduces the range of professions for patients and there are many problems in finding a job. In fact, doctors do not tire of repeating that an HIV-infected person is not dangerous to others and only 3 ways of transmitting HIV are officially confirmed, and even at its low concentration, the virus is unlikely to become a source of infection for a healthy person with stable immunity.

HIV is transmitted:

sexually,
when using one needle (this is common among drug addicts),
due to the transfusion of infected blood from a sick carrier to a healthy one,
in rare cases - from HIV of a pregnant woman to the fetus.

The virus is not transmitted through kisses, handshakes, coughing, saliva, eating and drinking from the same dish, visiting public places: baths, saunas, swimming pools, transport.

HIV infection does not survive for long in environment. These are unfavorable conditions for her and death quickly sets in. Even after an injection with a contaminated needle, the virus is not always transmitted. The risk of infection is high but low percentage virus will definitely not lead to infection. As well as through biological fluid or tears with blood particles, it is impossible to get infected.

By law, infected people do not have any restrictions on work. A person, if desired, has the right to work in almost any place, wherever he wishes. Unless, of course, due to health reasons, they are able to cope with their labor obligations. The worker is not dangerous to society and carries absolutely no threat. In the case of illegal dismissal, the employer can always defend his rights in court. HIV and any work are not limited by anything. You can also choose any workplace, along with everyone to go on sick leave, work full time or transfer to more light work if the state of health so requires. Positive citizens can get any job, unless, of course, this is contrary to the legislation of the Russian Federation, which clearly indicates the list of professions for which sick citizens are admitted only if they have a health book. In particular, the employer also does not have the right to dismiss an employee or refuse him a job just because of HIV infection.

What does the law say?

The only thing that should be done with an HIV positive status is to undergo a medical examination and tests, and only people of those professions, the list is approved by the Moscow government.

The law outlines specific types of professions approved by the government of the Russian Federation, when it is required to inform the employer about their HIV status, undergo testing and medical. examination at the time of employment. There is a list of professions that require periodic checks by honey. personnel.

If problems arise with employment, citizens can file a lawsuit in accordance with the Constitution of the Russian Federation, where they can defend their rights. The law (Article 17) does not impose special restrictions on ore for HIV-infected people, who are now free in their choice. Moreover, they are not required to report their status to employers, just as they, in turn, do not have the right to ask if the position is not related to blood and quite allows this to be done. The only thing that should be done with an HIV positive status is to undergo a medical examination and tests, and only people of those professions, the list is approved by the Moscow government.

Where can HIV carriers not work?

A number of professions where it is not allowed to conduct labor activity HIV-infected narrowly. These include:

doctors, nurses,
employees of transfusion and blood sampling stations,
scientists whose work is directly related to the manufacture and development of immune drugs.

These people must undergo an annual medical examination to determine their HIV status and are subject to testing. Such professions are provided by federal law as closed.

For nurses, nannies, police officers, employees educational institutions HIV positive status cannot be a reason for refusing employment. With such an argument on the part of the employer, it is only worth reminding him of the list of closed professions, clearly and in detail prescribed in the federal law. By the way, even surgeons are not among the closed professions either.

To have a dignity in order. the book should be people whose work is directly related to products: cooks, confectioners, salespeople, bartenders in public catering. In addition, officially confirm your status at the initial stage. Yes, everyone who sells or produces food products should have a honey book, but of course, we are not talking about directly infecting another person. There is practically no risk of possible infection.

Despite various clarifications about the transmission of the AIDS virus, people are still wary of workers who are directly associated with the products. It is worth noting once again that HIV-infected people can work in places of public catering and retail, unless it poses a threat to their health when working in conditions with sudden changes in temperature, in hot smoky workshops.

Myths about caregivers

Often, parents categorically refuse to send their children to kindergartens when they find out about the HIV-positive status of one of the caregivers or the child. Obviously, the immunodeficiency virus does not live in the environment for a long time, thus it does not pose any danger or threat to healthy people. The infection is not transmitted through handshakes, toys, shared items, and even saliva. The myth is when a caregiver with HIV positive status is denied employment.

Another thing is when infection through non-sterile needles is possible when giving an injection to children, but today such cases are rare. SES bodies carefully monitor the work of honey. staff at DOW.

Infection can occur in children with:

surgery to remove appendicitis,
transfusion of infected donated blood,
breastfeeding by an infected mother.

It is still important for adults to understand that children are not contagious and can attend children. kindergartens, while having the right not to report their HIV status. During communication, the infection is not transmitted. Just like the educator kindergarten is not a distributor of infection and is not contagious to others. HIV is not transmitted by household means and directors of institutions do not have the right to refuse an infected employee when hiring.

Admission of a child with HIV to a preschool educational institution is carried out on a general basis. The Government of the Russian Federation has determined the procedure for educating children with HIV and disabled people at home, paying the required compensation for the costs associated with education. Any discrimination of these people in society is excluded. Often, parents motivate by the fact that children in the nursery bite, play pranks, can inadvertently injure each other, thereby becoming infected through the blood. The likelihood of HIV transmission in such cases is negligible. It should be understood that even if the virus enters the wound, HIV transmission is unlikely and such cases have not yet been recorded. Most likely, infection will not occur if blood particles are left under the nails when children scratch. Theoretically, blood particles from under the nails can enter the mouth of a healthy child, but for infection to occur, the blood must enter directly into the blood. That is why the blood of an HIV-positive child does not pose any danger to healthy children. As well as infected teachers have the right to work in kindergartens or schools.

People are distrustful of employees of hospitals, clinics, family houses, dental centers, blood transfusion institutions, and beauty salons. Of course, infection in any of these social spheres is theoretically possible.

Annual HIV testing must be completed each year by:

donors
employees of junior medical staff of all specialized structures healthcare,
scientists,
blood transfusion workers
specialists of research institutions for the production of immunological material,
stateless citizens and foreign residents residing on the territory of the Russian Federation for more than 3 months.

Today, the circle of people subject to annual HIV testing has been expanded. Doctors, nurses, laboratory assistants, cleaners, hairdressers, employees of manicure and pedicure salons must pass. When an HIV diagnosis is made, the patient will be registered. In order to avoid the spread of the immunodeficiency virus throughout Russia, the legislation clearly spells out the list of workers subject to compulsory examination. Those. all those persons who directly deal with blood, biomaterials, preparations containing blood.

The law protects the interests of employees infected with HIV. There are large compensations in case of accidental infection at work, as well as benefits when working with increased contingency for possible infection with this virus.

Are there any work restrictions?

The interests of an employee in a hazardous production are under the personal protection of the state. The employer does not have the right to dismiss an employee, citing this as a source of infection

The law does not stipulate the list of HIV-infected employees who can be fired. The interests of an employee in a hazardous production are under the personal protection of the state. The employer does not have the right to dismiss an employee, citing this as a source of infection. He can only offer a different job, where any contacts with healthy people will be excluded, as well as the risks of infection will be reduced to zero. In addition, when applying for a job, the employer does not have the right to demand even a certificate of passing the examination. A person does not have the right to disclose his status. Report it or not, this is a personal HIV infection. The law defines the circle of employees who are not subject to mandatory HIV testing and even at the request of the employer cannot be fired if HIV status is accidentally detected as immunodeficiency. It's just illegal. All rights and freedoms of citizens of the Russian Federation are protected by law.

Patients can only be limited in work due to possible infection with an infection or transferred to another position, where the ways of infection are excluded. The employer must notify each employee of vacant vacancies without exception.

It is possible to request a sanitary book for a circle of people involved in food or blood, but there can be no dismissal without any reason.

No reason to quit

Today, in society, the perception of HIV is ambiguous. Not everyone correctly perceives the legislative wording in relation to such patients. Uncertainty and inconsistency of actions on the part of management when faced with HIV-infected employees can be traced everywhere. One thing should be clear, that a sick person cannot be fired just because of their HIV positive status. Of course, it provides for the delivery of tests and examinations when applying for a job, as well as for all those working in production as a planned annual honey. inspection. This is only necessary to monitor the health status of working personnel and the possible transfer to easier work when identifying one or another prof. diseases.

In almost all cases, HIV status is not a reason for dismissal. The main thing is that the work for such people should be commensurate with the permissible workload in production. Today, many entrepreneurs offer alternative employment options for HIV patients. These are remote vacancies by freelancers, journalists, programmers. Go retraining and retraining through the Internet is not difficult.

People with a positive HIV status often get sick and are on sick leave for a long time due to health reasons. This, of course, is not to the liking of many employers, but even in such cases, dismissal is illegal. The sick leave will be extended and, of course, paid until the patient completes the full treatment course. Illegally dismissing an employee even at opening sick leave more than 3 months. This is not a reason to get fired. It happens that the management puts an ultimatum: going to work or being fired. HIV-infected people should be aware of their rights. In case of discrimination, apply to the court, and upon receipt of disability, count on due benefits on the fact of incapacity for work after passing the ITU. Dismissal of one's own free will is also possible, while the manager will be required to pay severance pay and average earnings in 2 weeks. In general, everything is as it should be for all healthy people when applying for a job or dismissal.

Section 17, Federal AIDS Law “Prohibition of Restrictions on the Rights of People with HIV”.

“Dismissal from work, refusal to hire ... as well as restriction of other rights and legitimate interests of HIV-infected people on the basis of their HIV infection are not allowed ...”. At the same time, according to Article 9 of the law, “employees of certain professions, industries, enterprises, institutions and organizations, the list of which is approved by the Government of the Russian Federation, undergo a mandatory medical examination to detect HIV infection during mandatory pre-employment and periodic medical examinations” .

The UN International Guidelines on HIV/AIDS and Human Rights states: “States should take steps to ensure that people living with HIV and AIDS are allowed to work for as long as they are able to perform functional duties in the workplace. .. The applicant or employee should not be required to provide information to the employer regarding their HIV infection... State obligations to prevent any form of discrimination in the workplace, including on the basis of HIV/AIDS, should be extended to the private sector... In the vast majority of professions and areas of activity, the work performed does not involve the risk of acquiring or transmitting HIV during contacts between workers, as well as from worker to client or from client to worker.” The latter position was confirmed by large-scale studies under the auspices of World Organization health and international organization labor.

The prohibition of discrimination in the sphere of labor is also reflected in Russian legislation.

Scroll professional workers who are required to be tested for HIV, is given in the government decree; it includes the following specialties:

a) doctors, middle and junior medical staff of centers for the prevention and control of AIDS, health care institutions, specialized departments and structural divisions health care institutions engaged in direct examination, diagnosis, treatment, maintenance, as well as forensic medical examination and other work with persons infected with the human immunodeficiency virus, who have direct contact with them;

b) doctors, paramedical and junior medical personnel of laboratories (groups of laboratory personnel) who carry out examinations of the population for HIV infection and blood tests, and biological materials obtained from persons infected with the human immunodeficiency virus;

c) scientists, specialists, employees and workers of research institutions, enterprises (industries) for the manufacture of medical immunobiological preparations and other organizations whose work is related to materials containing human immunodeficiency virus.

In other words, employees who:

a) treat and examine patients with HIV infection;

b) examine blood and biomaterials containing HIV;

c) work in factories where HIV-containing materials are used.

From the content of this resolution, we can conclude that it primarily protects the interests of workers who are at risk of contracting HIV in the performance of their professional duties. It is logical to assume that HIV testing upon entry to work and periodic medical examinations is designed to identify cases of occupational infection in a timely manner and, in particular, to resolve the issue of paying compensation (benefits) to workers who contracted HIV at the workplace. This is also stated in federal law.

Federal Law “On Preventing the Spread in the Russian Federation of a Disease Caused by the Human Immunodeficiency Virus (HIV)”. Article 21

"Employees of enterprises, institutions and organizations of the state and municipal systems health care providers who diagnose and treat HIV-infected people, as well as persons whose work is related to materials containing human immunodeficiency virus, in case of infection with human immunodeficiency virus in the performance of their official duties are entitled to receive state lump-sum benefits”.

Please note that the list of specialties subject to mandatory medical examination is the same as the list of those eligible for compensation in case of infection. The same occupational categories receive additional benefits under the Federal AIDS Act.

Federal Law “On Preventing the Spread in the Russian Federation of a Disease Caused by the Human Immunodeficiency Virus (HIV)”. Article 22

“Employees of enterprises, institutions and organizations of the state and municipal health care systems that diagnose and treat HIV-infected people, as well as persons whose work is related to materials containing the human immunodeficiency virus, are paid a bonus to their official salary, a reduced working day and additional leave for work in especially dangerous working conditions”.

Mandatory examination of workers, therefore, is a link in a single set of measures to protect the interests of these workers, which includes monitoring their health in connection with hazardous working conditions.

The Federal Law does not say what the consequences of detecting HIV infection in workers of these specialties may be, in particular, whether they can be fired. In the light of the foregoing, the refusal to hire or dismiss an employee in connection with a detected HIV infection makes no sense: after all, a set of legislative measures is designed to protect the interests of an employee in a situation of risk of infection, and if infection has already occurred, this issue is automatically removed.

However, the Rules for conducting a mandatory medical examination for the detection of the human immunodeficiency virus (HIV infection), approved by the Government of the Russian Federation, explain:

“17. In the event that HIV infection is detected in workers of certain professions, industries, enterprises, institutions and organizations, the list of which is approved by the Government of the Russian Federation, these workers are subject, in accordance with the legislation of the Russian Federation, to transfer to another job that excludes the conditions for the spread of HIV infection.

18. If you refuse to undergo a mandatory medical examination for the detection of HIV infection without good reasons the employee is subject to disciplinary liability in accordance with the established procedure”.

Why should a person infected with HIV - no matter how - be transferred to a job that “precludes the conditions for the spread of HIV infection”? What does "excluding conditions" mean? A job where she/he will not be exposed to HIV? (What difference does it make, since the infection has already occurred?) Or where others will not become infected from her / him? (Who? HIV-infected patients or “materials containing human immunodeficiency virus”?).

Despite this inconsistency and ambiguity in the legal language, two things are clear:

with HIV infection, you cannot be fired, you can only transfer to another job;
Only workers with well-defined specialties, who also benefit from hazardous working conditions, should be tested for HIV at entry to work and at routine medical examinations.
Apart from this limited number of employees, no one is required by law to be tested for HIV at the request of an employer. Also, no one can be denied a job or fired from a job based on their HIV status. Article 5 federal law“Guarantees of observance of the rights and freedoms of HIV-infected people” says: “The rights and freedoms of citizens of the Russian Federation may be limited due to the presence of HIV infection only by federal law.”

Federal Law “On Preventing the Spread in the Russian Federation of a Disease Caused by the Human Immunodeficiency Virus (HIV)”. Article 1(2).

"Federal laws and other regulatory legal acts, as well as laws and other regulatory legal acts of the constituent entities of the Russian Federation, cannot reduce the guarantees provided for by this Federal Law.

This means that no internal guidelines or departmental regulations can legally fire a worker with HIV infection if her or his specialty is not on the government list cited above. However, the provisions of the Federal AIDS Act are systematically violated with impunity by both public and private enterprises.

“I am a health worker, HIV positive. I work at the ambulance station. Does the administration of my hospital have the right to dismiss me for this reason, despite the fact that, in carrying out my direct medical duties, I take exceptional precautions (hand sanitizer, use of gloves)? What should I be guided by (in terms of the legal framework) when refusing to write a letter of resignation of my own free will, which the administration insistently requires from me?

“I worked as a salesperson, and they had to change my medical book. I couldn't get a new medical book, because there should be an HIV test. At McDonald's, where I tried to get a job, they also told me that I needed an analysis. HIV-positive people are not taken to McDonald's, I know for sure. In my SES they answered that they would not give me a medical book. I can't get a job anywhere in my profession as a salesman. Therefore, I do not work yet, my grandmother and I live on her pension.”

According to the decision of the Chief Sanitary Doctor of the Department of State Sanitary and Epidemiological Surveillance of Moscow, in 1997 new sanitary books were issued, where there is a column “testing for HIV”, although, according to the head of the licensing department of the Department of State Sanitary and Epidemiological Surveillance, an HIV test for obtaining a sanitary book is not compulsory. If this examination is not mandatory, why was it included in the health book?

Reply from 02/05/2014 14:04

Section 17, Federal AIDS Law “Prohibition of Restrictions on the Rights of People with HIV”.

The UN International Guidelines on HIV/AIDS and Human Rights states: “States should take steps to ensure that people living with HIV and AIDS are allowed to work for as long as they are able to perform functional duties in the workplace. .. The applicant or employee should not be required to provide information to the employer regarding their HIV infection... State obligations to prevent any form of discrimination in the workplace, including on the basis of HIV/AIDS, should be extended to the private sector... In the vast majority of professions and areas of activity, the work performed does not involve the risk of acquiring or transmitting HIV during contacts between workers, as well as from worker to client or from client to worker.” The latter position was confirmed by large-scale studies under the auspices of the World Health Organization and the International Labor Organization.

The prohibition of discrimination in the sphere of labor is also reflected in Russian legislation.

The list of professionals who are required to be tested for HIV is given in a government decree; it includes the following specialties:

A) doctors, paramedical and junior medical staff of centers for the prevention and control of AIDS, health care institutions, specialized departments and structural subdivisions of health care institutions engaged in direct examination, diagnosis, treatment, maintenance, as well as forensic medical examination and other work with persons infected with the human immunodeficiency virus, having direct contact with them;

B) doctors, paramedical and junior medical personnel of laboratories (groups of laboratory personnel) who carry out examination of the population for HIV infection and examination of blood and biological materials obtained from persons infected with the human immunodeficiency virus;

C) scientists, specialists, employees and workers of research institutions, enterprises (industries) for the manufacture of medical immunobiological preparations and other organizations whose work is related to materials containing human immunodeficiency virus.

In other words, employees who:

A) treat and examine patients with HIV infection;

B) examine blood and biomaterials containing HIV;

C) work in industries where HIV-containing materials are used.

Federal Law “On Preventing the Spread in the Russian Federation of a Disease Caused by the Human Immunodeficiency Virus (HIV)”. Article 21

“Employees of enterprises, institutions and organizations of the state and municipal health care systems that diagnose and treat HIV-infected people, as well as persons whose work is related to materials containing the human immunodeficiency virus, in the event of infection with the human immunodeficiency virus in the performance of their official duties, have the right to receipt of state lump-sum benefits”.

Federal Law “On Preventing the Spread in the Russian Federation of a Disease Caused by the Human Immunodeficiency Virus (HIV)”. Article 22

However, the Rules for conducting a mandatory medical examination for the detection of the human immunodeficiency virus (HIV infection), approved by the Government of the Russian Federation, explain:

18. In case of refusal to undergo a mandatory medical examination for the detection of HIV infection without good reason, the employee is subject to disciplinary liability in accordance with the established procedure.”

Despite this inconsistency and ambiguity in the legal language, two things are clear:

With HIV infection, you cannot be fired, you can only transfer to another job;
Only workers with well-defined specialties, who also benefit from hazardous working conditions, should be tested for HIV at entry to work and at routine medical examinations.
Apart from this limited number of employees, no one is required by law to be tested for HIV at the request of an employer. Also, no one can be denied a job or fired from a job based on their HIV status. Article 5 of the Federal Law “Guarantees of observance of the rights and freedoms of HIV-infected people” states: “The rights and freedoms of citizens of the Russian Federation may be restricted due to their HIV infection only by federal law.”

Federal Law “On Preventing the Spread in the Russian Federation of a Disease Caused by the Human Immunodeficiency Virus (HIV)”. Article 1(2).

"Federal laws and other regulatory legal acts, as well as laws and other regulatory legal acts of the constituent entities of the Russian Federation cannot reduce the guarantees provided for by this Federal Law."

In accordance with the Constitution of the Russian Federation and the Labor Code of the Russian Federation, everyone has the right to freely dispose of their abilities for work, to choose the type of activity and profession.

The Labor Code prohibits unreasonable refusal of employment. Article 3 of the Labor Code of the Russian Federation stipulates that everyone has equal opportunities to exercise their labor rights. Nobody can be limited

in labor rights and freedoms or receive any advantages regardless of gender, race, skin color, nationality, language, origin, property, social and official status, age, place of residence, attitude to religion, political opinions, belonging or not belonging to public associations, as well as from other circumstances not related to the business qualities of the employee.

In accordance with the Federal Law “On the Prevention of the Spread in the Russian Federation of the Disease Caused by the Human Immunodeficiency Virus (HIV)” (Article 17), it is not allowed to be dismissed from work, refuse to be hired, refuse to be admitted to educational institutions and institutions that provide medical care, as well as restriction of other rights and legitimate interests of HIV-positive people on the basis of their HIV infection. There is no direct basis for the dismissal of a citizen with HIV and Labor Code RF, where Article 81 provides 13 grounds for dismissal of an employee at the initiative of the employer.

However, an employee may be dismissed if he is recognized (but only in accordance with a medical report) as completely incapacitated for work or if his state of health interferes with the performance of work.

Also, only in accordance with a medical report, if contraindications are identified for the employee to perform work, he may be suspended or not allowed to work, stipulated by the employment contract.

Persons who are carriers of pathogens of infectious diseases (including HIV infection), if they can be sources of the spread of infectious diseases due to the peculiarities of the production in which they are employed, or the work they perform, with their consent, are temporarily transferred to another job, not associated with the risk of spreading infectious diseases. If it is impossible to transfer on the basis of decisions of the chief state sanitary doctors and their deputies, they are temporarily suspended from work with the payment of social insurance benefits (Article 33 of the Federal Law of March 30, 1999 N 52-FZ "On the sanitary and epidemiological well-being of the population"). In this case, the employee, only with his consent, in accordance with the medical report, the employer can transfer to another available job that is not contraindicated for him for health reasons (namely, transferred, not fired). In practice, the question may arise - what to do if the employer does not have a position that would exclude the possibility of the spread of HIV infection and would be suitable for an employee by profession and qualifications. The law does not provide an answer to this question, and in practice such a dispute between an employer and an HIV-positive employee may not be resolved in favor of the employee.

The above article of the law can only be applied to HIV+ workers in occupations that involve contact with fluids through which HIV can be transmitted. In relation to the teacher, clerk, etc. this rule cannot be applied, since the performance of work duties does not create a threat of the spread of HIV. Although HIV infection is infectious disease, but it is not transmitted either by household or airborne routes, therefore HIV does not pose a danger in everyday life and during ordinary contacts, even for people who communicate closely.

Workers in some professions are required to undergo a medical examination upon admission to work and during periodic medical examinations. The list of such professions was approved by Decree of the Government of the Russian Federation No. 877 of September 4, 1995. It includes: doctors, medical personnel of health care institutions involved in working with people infected with HIV, as well as with screening the population for HIV and blood tests; scientists, specialists whose work is related to materials containing HIV. Representatives of the professions listed in the Decree who refuse to be tested for HIV are subject to disciplinary liability, that is, they can be dismissed at the initiative of the administration.

In practice, there are requirements to be tested for HIV when applying for a job in hotels, restaurants, canteens, kindergartens and schools, institutes, etc. These requirements are illegal, since only the Government of Russia can approve the list of professions for which mandatory HIV testing is required.

If you are required to take an HIV test, in situations where you should not, you can ask the head of the organization or the head of the personnel department if he knows that it is prohibited by law to establish any additional grounds for mandatory HIV testing. If the official does not retract his demands, then you should prepare for litigation. We need written evidence or testimonial evidence that the job you are applying for is vacant. This may be the data of the employment service, announced in the newspaper or on the stand. Next, you need to find a way to confirm the administration's requirement to take an HIV test (for example, a list of documents required for applying for a job); it is necessary to collect all documents, except for the document on passing the HIV test, submit them together with the application for employment and demand a written refusal. In the event that it is not possible to achieve a written refusal, a conversation with a representative of the administration should be conducted with at least one witness. Claims for labor disputes are not subject to state duty. Submission deadline statement of claim to the court - no more than three months from the moment of refusal to hire. You can win such a case, and the court will oblige you to hire a citizen. Similarly, you can refuse to be tested for HIV at periodic medical examinations.

Unfortunately, in Lately there are many cases when HIV+ children are not admitted to educational institutions. To prevent this, it is necessary to use the laws. The principal of the school cannot refuse parents for the reason that medical card the baby is listed this disease. “States shall take all necessary measures to ensure the protection of the child from all forms of discrimination or punishment based on the status of activities, expressed views or beliefs of the child, the child’s parents, legal guardians or other family members” (Article 2, paragraph 2 of the UN Convention on the Rights of the Child) . Guarantees for children are also provided by Russian legislation: “Citizens of the Russian Federation are guaranteed the opportunity to receive education regardless of gender, race, nationality, language, origin, place of residence, attitude to religion, beliefs, belonging to public organizations(associations), age, state of health…” (Article 5 of the Law of the Russian Federation “On Education” dated July 10, 1992 N 3266-1).

An HIV-infected child must be admitted at any educational institution on a universal basis. If, for health reasons, it is difficult for him to attend school, then the educational authorities and educational institutions provide, with the consent of the parents, the child's education in full general education or individual program at home. The Government of the Russian Federation should determine the procedure for the upbringing and education of disabled children at home, in non-state educational institutions, as well as the amount of compensation for the costs of parents for these purposes.

HIV-positive people neither in the workplace nor in educational institutions they do not pose any danger to others, and discrimination against them only on the basis of their diagnosis is a complete violation of their rights and freedoms. Persons who believe that they have been discriminated against, including in the sphere of work, in accordance with Russian legislation has the right to apply to the court and (or) to the bodies of the federal labor inspectorate with an application for the restoration of violated rights, compensation for material damage and compensation for moral damage.