Generally, you are not obliged to tell an employer or prospective employer that you are HIV-positive. However it may be useful or necessary to do, depending on your situation.
There are very few jobs where an employer or prospective employer can legally ask about your HIV status/require you to have an HIV test.
Australian Defence Force (ADF)
Everyone who applies to join the ADF is tested for HIV. If you test HIV-positive you will not be accepted into the ADF.
The ADF also regularly test serving personnel. If you are already a member of the ADF confirmation of a HIV-positive status will result in you being non-deployable. You will be referred to a Medical Employment Classification Review Board and may be medically discharged or retained as a member in a non-deployable role for a ‘period of time’.
Combat and related roles are specifically exempted from the protection of discrimination legislation.
HIV positive people are not able to gain or hold certain classes of commercial aviation licences. It is an offence to give false or misleading information, or to omit information when completing an application for an aviation medical examination. This includes lying about your HIV status. The maximum penalty is twelve months imprisonment.
Health Care Workers (HCWs)
There is no mandatory requirement in WA to test HCWs for their blood-borne virus status (i.e. HIV, HBV, HCV). If you are a HIV-positive healthcare worker you can usually continue to work without any restrictions, but should always follow procedures to prevent HIV transmission and report HIV exposure incidents.
Healthcare workers are encouraged to know their own HIV status, especially if performing ‘Exposure Prone Procedures’.
HIV-positive HCWs must not perform EPPs. EPPs are procedures performed in a confined body cavity where there is poor visibility and a risk of cutting yourself with a sharp tool, tooth, or bone. This restriction particularly affects surgeons, dentists and a limited number of nurses.
If you are a HIV-positive surgeon, dentist or nurse performing EPPs you must seek advice from your professional body as to the types of procedures you may and may not perform or assist with.
If you are taking a lot of sick days your employer may ask you to provide a medical certificate. You can ask your doctor not to specify your HIV status on your medical certificate.
Medical examinations/drug test
By law, you cannot be tested for HIV without your specific consent and it may be unlawful for your employer to require you to undergo a HIV test. If you consent to a HIV test then your employer has a duty of confidentiality and must also not treat you less favourably.
Some industries enforce random drug tests aiming to assess whether you have used any prohibited substances which may make it unsafe for you and your colleagues in the work place.
Antiretroviral (ARVs) medication, in particular efavirenz (found in Australia products Stocrin and Atripla) sometimes cause false positive results for prohibited substances, such as tetrahydrocannabinol (THC) found in cannabis and the prescription medication benzodiazepine.
If you receive a false positive on a drug test due to your ARV medication then this may cause some problems. A false positive may cause the medical examiner to notify your supervisor so they can withdraw you from duties pending a conclusive result. A letter from your HIV doctor indicating you are on prescription medication which might cause a false positive drug test is advisable to have with you, or to obtain if this occurs. It is not necessary for your doctor to cite your HIV condition as the reason for the medication or to list the ARVs.
If you do choose to disclose your HIV status to the medical examiner they have a duty of confidentiality and that information is protected by privacy laws.
Confidentiality and fair treatment
Employers have a general duty to maintain employee confidentiality and in many cases your employer will be subject to the Privacy Act 1988 which requires that the information be kept confidential. In practice though, if your employer breaches the duty then there may be no way to provide a satisfactory remedy.
Consider very carefully before disclosing, because you can’t take the information back. While your current supervisor may be understanding, if your status is on file then your next supervisor will also have access to this information and may have a different attitude.
If an employer dismisses you because you have HIV, or prevents you from undertaking certain tasks that would normally be part of your job, then this may amount to unlawful discrimination. Seek legal advice about your rights. You must act quickly however, as in some instances legal action must be commenced in less than 21 days. Contact WAAC for legal referral.
If you have any further questions about employment, don’t hesitate to contact us.