A win for people living with HIV
People Living With HIV (PLWHIV) recently scored a win: The Supreme Court has affirmed that firing an employee for testing positive for human immunodeficiency virus (HIV) is illegal and discriminatory. This is a fair warning for employers—here and abroad—to stop discriminatory practices like this.
In a decision promulgated last February, the high court found that the dismissal of an overseas Filipino worker (OFW) deployed as a cleaner to Saudi Arabia in 2017 under a two-year contract was invalid for being discriminatory. The OFW was found HIV-positive in January 2019 after a routine medical exam prompting his foreign employer to terminate him, citing Saudi Arabian laws that consider PLWHIV “unfit to work.” He was repatriated to the Philippines in February of that year; he then filed a complaint that was elevated to the National Labor Relations Commission (NLRC) which ruled in his favor. The Court of Appeals (CA) affirmed the NLRC ruling but the recruitment agency questioned it before the Supreme Court.
Discriminatory policies
In its ruling, the high court affirmed that the OFW was illegally dismissed and was entitled to salaries for the unexpired portion of his employment contract and moral exemplary damages, among others. It also cited Section 49 of Republic Act No. 11166 or the Philippine HIV and AIDS Policy Act which prohibits “[t]he rejection of job application, termination of employment, or other discriminatory policies in hiring, provision of employment, and other related benefit, promotion, or assignment of an individual solely or partially on the basis of actual, perceived, or suspected HIV status.”
In a press release, the high court stated: “Since Philippine law prohibits the use of a person’s HIV-positive condition as a ground for dismissal, there was no valid cause to terminate [the OFW]. Further, if the foreign law stated in the employment contract contradicts Philippine law, morals, good customs, public order, or public policy, the Philippine law shall apply. In this case, even if it is proven that Saudi Arabian law prohibits workers who test positive for HIV, RA 11166 takes precedence over it for being against Philippine law.”
Destigmatizing HIV
This ruling sets a precedent for similar cases in the future. It should also help reduce the stigma attached to PLWHIV and allow them to take on jobs, make use of their talents, contribute to society, and succeed without being discriminated against. What is worrying, on the other hand, is the rapid rise of HIV infections in the country, which shows that aside from destigmatizing HIV and educating the public about tests and treatments, it is equally urgent to stop the spread of the virus through sex education.
Joint United Nations Programme on HIV/AIDS (UNAIDS) data show that while infections globally fell 38 percent from 2010 to 2022, the Philippines saw a 418 percent increase making it the fastest-growing epidemic in the Asia-Pacific region and the fourth fastest in the world. Furthermore, only 63 percent of HIV-positive Filipinos were aware of their status and 41 percent were on treatment. This is below the UNAIDS target of 95 percent, which makes it imperative for the Department of Health to not only put up more testing and treatment centers but to encourage people to get tested.
HIV, if untreated can lead to acquired immunodeficiency syndrome (AIDS), and only those who are diagnosed late die from the disease given that in this day and age, treatment is already available. Yet, AIDS-related deaths in the country increased 538 percent between 2010 and 2022 even as they fell 51 percent globally. Experts have blamed poor sex education and conservative attitudes related to religion as fueling the spread of the virus, as well as the stigma that makes people scared to talk about it or seek testing and treatment.
Another test case
Last month, film and theater actor Adrian Lindayag revealed—for the first time since he was diagnosed in 2017—that he is positive with HIV. Lindayag shared his story to raise awareness about HIV and that people like him can still live normal lives. More importantly, he wanted to encourage the public not to be afraid of getting tested noting that he has lost many friends because they were scared of being judged. “We didn’t need to lose them … Hindi natin kailangang mamatay (We don’t need to die),” he said.
They don’t need to lose their jobs either.
The Supreme Court’s decision on the OFW’s case could further encourage PLWHIV to pursue full lives because the law exists to protect them. Stakeholders should still watch out, however, and ensure that employers will not use indirect ways to terminate a PLWHIV just like in the movie “Philadelphia.” Of interest is another case against a dentist and owner of a dental clinic who refused to treat a PLWHIV in 2017. It was brought to the high court last year after the CA dismissed the case. How the Court rules on this will be another test case on how the state protects PLWHIV against discriminatory practices. Hopefully, it will be another victory for them.
