It is something human rights organizations in the country are looking to change by calling for the implementation of the AIDS tribunal which was gazetted in December 2009. It is expected to seek legal redress for past injustices against people living with HIV.
The 2010 Human Rights Count report released in May 2010, which is the first of its kind in Kenya, revealed that 82.7 percent of people living with HIV face abuses ranging from loss of life, denial of social security as well as health care, among others.
The answer to your second question is easy: yes, it is illegal to discriminate against an employee (or prospective employee) because of HIV status. The answer to the first part of your question is no. An employer cannot require an HIV test; it’s none of their business. An employer (or prospective employer) can ask you if are able to complete the essential functions of your job with or without a reasonable accommodation but cannot ask you about your medical condition.
Kenya does not have laws protecting workers from being fired- or not hired- because of sexual orientation, except the constitution which generally prohibits discrimination.
The HIV Prevention and Control Act, however, forbids discrimination in hiring or termination of the HIV positive.
Despite this, people continue to experience workplace discrimination based on their HIV status- sexual orientation notwithstanding. We believe that most cases can be resolved by educating both employers and employees about their legal rights and obligation. Often, neither side is aware of their status.
All health care workers are required to follow infection control practices and these are outlined in Policies of the institution. It does not make a difference if you have HIV, HEP C, etc. you still follow the guidelines that will help to prevent every patient from any potential infection, blood borne or otherwise. Continue reading
Yes. Every sexually active adult is at some risk of HIV infection. The workplace gives us all an opportunity to educate ourselves about HIV and AIDS, and about how transmission does and does not take place. This is why it is so important for every workplace (no matter how big or how small) to have an HIV and AIDS policy and programmer. Condoms can be easily distributed at work, and education programmers can be organized to teach staff and their families about HIV and AIDS. Continue reading
Although a person with HIV or AIDS is no risk to other employees, fear and prejudice sometimes lead to demands for for the firing of a person who is known or suspected to have HIV. It is unlawful to dismiss an employee with HIV, even if all the employees of the company refuse to work with that person. The employees discriminating against a worker living with HIV or AIDS should be disciplined for this unacceptable conduct. Continue reading
Eventually, many people with HIV start to become ill with AIDS. During this time, an employee may use up a lot of sick leave, and his/her capacity may be affected.
All employees have a right to sick leave and an employer has no right to discriminate against or dismiss an employee who uses these rights. However, an employer is allowed to dismiss an employee on the grounds of incapacity and poor work performance, even if the employee has not used all their sick leave.
Not necessarily. Not all insurance plans have pre-existing condition exclusions. The HIV AIDS Prevention and Control Act continues to elaborate further on this. It states that a re-insurer, insurer or health maintenance organization, shall, in the case of life and healthcare service insurance cover, devise a reasonable limit of cover for which a proposer shall not be required to disclose his or her HIV status. Continue reading
Not legally. It would be illegal for your boss to fire you (or demote you or take any such action against you) on the grounds of your HIV status. The HIV Prevention and Control Act prohibits such discrimination in the workplace. It assures that no person shall be denied access to any employment for which he is qualified or transferred, denied promotion or fired on the grounds of his actual or suspected HIV status. Continue reading
No. The employment Act sets out the procedures for dismissal. Dismissing you simply because you are known or suspected to have HIV is clearly unfair. This is because it violates the employee’s fundamental rights and has nothing to do with the conduct or capacity of the employee, or the workplace requirements of the employer. Continue reading