Testing for HIV infection would constitute a medical examination. It is the OHRC's position that any medical examination carried out for employment purposes should focus on verifying whether or not an individual is able to perform the essential duties of a particular job.
Employers considering any form of employment-related medical testing should refer to the OHRC's Human Rights At Work, 3rd. Ed. (2008) and the Policy on Employment-Related Medical Information.
The following are the main principles of the latter policy:
- Employment-related medical examinations or inquiries, conducted as part of the applicant screening process, are prohibited under subsection 23 (2) of the Code.
- Any employment-related medical examinations or inquiries are to be limited to determining the individual's ability to perform the essential duties of a job.
- Medical examinations, if determined to be necessary to assess an individual's ability to perform the essential duties of a job should only be undertaken after a conditional offer of employment has been made, preferably in writing.
- If the applicant or employee requires accommodation in order to enable him or her to perform the essential duties of the job, the employer is required to provide such accommodation unless to do so would cause undue hardship.
The Policy on Employment-Related Medical Information does not allow employers to subject job applicants to any type of medical examination before a conditional offer of employment is made. After the person is hired, medical tests designed to identify employees with disabilities may constitute a breach of the Code if the disability being tested for is not a reasonable and bona fide concern with regard to the job performed.
In most work settings, it is unlikely that testing for HIV infection or other protective measures would be necessary or justifiable. Several studies have conclusively demonstrated that persons with HIV infection or HlV-related medical conditions pose virtually no risk to those with whom they interact.
The U.S. Public Health Service guidelines state that workers infected with HIV should not be restricted from using telephones, office equipment, toilets, eating facilities, or water fountains. There are no documented instances of HIV transmission from the serving or preparation of food or beverages. For non-sexual household contact, of 30,000 cases of AIDS reported to the U.S. Centre for Disease Control, none has occurred in family members of patients with AIDS, unless the members have partaken in other recognized risk-related behaviour.
The Canadian Medical Association released its policy on HIV in the workplace in May 1993, which includes the following statement:
There have been no instances in Canada of HIV infections in patients resulting from exposure to infected health care workers...Health care workers with HIV infection should be afforded the opportunity to compete for jobs and continue to work at their usual occupation as long as they meet acceptable performance standards and are mentally and physically able to perform the essential components of work safely, efficiently and reliably.
Biggs v. Hudson (1988) 9 C.H.R.R. D/834 (B.C. Human Rights Council).