Labor law

HIV and work: this topic has become more important to people with HIV since effective treatments for HIV have become available. Most people with HIV work, and others would like to start or go back to work.

HIV infection alone no longer needs to be a barrier to a working life. People with HIV can do almost any job.

Despite this, they can face some difficulties. These can include pre-employment medical examinations and the question of whether to be open about their HIV status at work.

Some people with HIV continue to report discrimination in the workplace - right up to unlawful dismissal. Other people, in contrast, receive tremendous support from their colleagues and superiors – or their infection is simply treated as a matter of course.

This section provides answers to the most important legal questions regarding HIV and work.

Some myths continue to circulate about HIV and work. Some employers and staff members in job centers/employment agencies believe them, as do some HIV-positive people themselves. These misconceptions cause unnecessary problems and fear. They can easily be cleared up.

• Myth 1: an HIV-positive employee is required to tell their employer about their HIV status.
  False! The employee is not required to do so. There are only a small number of exceptions, such as pilots.

• Myth 2: An employer has the right to learn about the HIV status of an employee.
  False! An employee need not disclose their status even if they are asked directly whether they are HIV-positive. There are only a small number of exceptions to this. This also means that staff at employment agencies (ARGEN) and job centers are not permitted to inform potential employers about the HIV status of people looking for work.

• Myth 3: HIV-positive people are not allowed to work in the food service industry, with children or in healthcare professions.
  False! There is no reason for such a ban, as HIV cannot be transmitted to other people either by day-to-day contact or during food production. There is no risk of HIV infection during medical treatment as long as normal hygiene provisions are followed.

The only limitation: HIV-positive doctors and nurses are not permitted to carry out certain surgical procedures. More information is available here.

In principle there are no limitations for people with HIV when it comes to choosing a job. A person who becomes infected with HIV can, as a rule, continue doing the same sort of work they did before. There is no risk of infection for colleagues or customers in ordinary work situations.

The situation may be different if HIV leads to a serious illness, which limits the person's ability to work on a long-term basis.

There are also exceptions in a small number of jobs, where there is a risk of infection for others or because HIV-positive people are not allowed to travel to some countries.

Healthcare professions

People with HIV can, in principle, work as doctors or nurses without any problems. Limitations only apply when there may be a risk of infection for other people. It's important to make sure that no blood from the doctor or nurse can comes into contact with a patient’s wound. This, however, is already covered by the normal hygiene procedures.

A risk only exists in a very small number of specific surgical procedures that carry an increased risk of injury for the surgeon; for example, when the surgeon's field of vision is limited and the scalpel has to be guided with the finger. In rare cases, similar situations may occur for dentists, gynecologists and nurses.

People with HIV are not allowed to carry out these procedures. This does not mean, however, that they are not allowed to work in the profession.

A counseling session at an AIDS service organization can help with questions and problems relating to this complicated topic. The nationwide telephone counseling  and online counseling  services run by AIDS service organizations are also happy to help.

Flight personnel

In Germany, people with HIV are not allowed to become a pilot or co-pilot of an airplane. This is a rule based on international regulations, which aim to exclude every possible risk factor - however small - from aviation. For this reason, people with chronic illness are considered unsuited to work in the cockpit. It is believed that health problems during the flight might make pilots unable to carry out tasks. A dizzy spell or a blackout, for example, could imperil the safety of the flight.

If you are already a pilot when the HIV infection is detected, you do not necessarily have to give up your job. You may be able to obtain a medical certificate of fitness with specific limitations listed.

There are still many countries that refuse entry to people with HIV. An overview of these countries can be found here. If travel to these countries is an essential part of a job, people with HIV are sometimes not able to take up this job. In practice, this mostly affects flight attendants. In such cases, employers are permitted to ask in the job interview about the HIV status of an applicant. Some airlines, however, do not do this.

If HIV infection is only diagnosed after a person is already in a job like this, they won’t always have to leave their job. You might be able to stay on, traveling only to places where there are no restrictions. The employer can, for example, deploy the person on other routes.

Problems can also arise if a company wishes to send an employee to a country with entry restrictions on a long-term basis, or if long stays in such countries are necessary in order to do the job.

Some professions also require "proof of fitness for service in the tropics". An HIV infection alone is no barrier here. The crucial factor is whether the health of the individual applicant is able to withstand the effects of the climate. The necessary immunizations can be given to most people with HIV.

In general: job applicants are not required to inform potential employers about their HIV status in a job interview or screening test. Employers are also not permitted to ask about it. If the question is asked despite this, the applicant is allowed to lie. Exceptions to  this rule exist in only a small number of jobs.

Employers are permitted, however, to ask whether the applicant has an illness that might lead to long-term incapacity to work within the foreseeable future. Whether that is the case can only be determined on an individual base, as modern HIV treatment means that even HIV-positive people with advanced infection are often able to work, once they have recovered from any  acute illnesses.

If a person conceals a serious illness, the most serious possible consequence allowed by labor law is the termination of the employment contract.

Before a job interview, you should consider in detail how you wish to answer questions about your health. A discussion with your doctor or with a counselor at an AIDS service organization may help.

Company medical examinations

Some employers carry out pre-employment medical checks. These are only compulsory for a small number of jobs (for example, pilots and professional drivers). Otherwise, they are usually voluntary. However, applicants will often not get the job if they do not agree to a medical exam.

The same rule applies: employers are not allowed to ask whether applicants are HIV-positive (seeRecruitment ). As a rule, an HIV test is not part of a pre-employment medical examination. Nonetheless, some applicants are asked to agree to an HIV test. This is problematic since a person who refuses will presumably not be employed.

Doctors are bound by doctor-patient confidentiality. Doctors may only tell employers whether the applicants are suitable for the work in question; giving information about specific illnesses is not permitted. Unfortunately, however, experience has shown that not all company doctors follow this rule. It may be useful to remind the doctor of their duty of confidentiality during the examination (see also Patients ' rights).

Health certificate / policy

To work in the catering and food production, a health certificate was required. This regulation changed in 2001.

Since then, according to § 43 of the Infection Protection Act any person who gets in contact with food at work, requires a certificate from the health department. In order to obtaining this certificate no investigation is necessary. Still one has to participate in a lecture led by the health department. The health authorities have either regular appointments or you can make an appointment there.

People with HIV get these certificates without any problems.

Severe disability

People with HIV who have a severe disability ID card ("Schwerbehindertenausweis") are not required to disclose this when entering into an employment contract. However, they can only take advantage of the benefits, which the severely disabled are entitled to if they do so. People who conceal their disabled status at the start of employment cannot demand those rights later.

Whether it is helpful to inform the employer can only be determined on a case-by-case basis. Some employers are afraid of hiring severely disabled people. They fear sick days or reduced work capacity.

Other employers are happy to employ people declared severely disabled. Companies are required to employ a certain number of people with severe disabilities, or pay certain charges. In addition, employers can claim subsidies for any necessary changes made to the place of work.

Applicants who disclose their severely disabled status will often be asked for the reasons. It is not necessary to reveal your HIV status. You should think about how you might want to answer this question beforehand, though.

Severely disabled employees (defined as a disability of 50% or more) are entitled to certain special rights, called disability compensation. For example, they receive five extra days of holiday. They can also request that they be exempt from doing overtime. Employers must then limit their work time to the contractually agreed hours.

Dismissal protection

Stronger protection from dismissal also applies to the severely disabled. The prerequisite is a degree of disability of 50% or more. If an application to be recognized as severely disabled is logged at and approved by the Arbeitsamt (Office for Employment), a degree of disability of 30% is sufficient.

Severely disabled employees can then only be dismissed if the responsible Integrationsamt (Office for the Integration of Disabled People) agrees. This does not protect a person - as is often assumed - from dismissal in general. It does, however, offer protection if an employer attempts to fire a severely disabled employee without valid grounds for dismissal.

Sometimes severely disabled people really are no longer able to fulfill their work tasks. With dismissals on this basis, the Integrationsamt checks whether the employee could be transferred to another job within the company.

It is also possible for the employer to be supported with salary subsidies so that the employee can stay on.

Subsidies

Employers of the severely disabled and severely disabled people themselves can apply for various kinds of subsidies under certain conditions. For example, a subsidy could be used to adapt the furniture or equipment in an office to make it more suitable for the person with the disability. In certain circumstances salary subsidies, assistance for the employee, and other aid, are available. A comprehensive list of the kinds of support available and the government office responsible for each can be found here.

An HIV infection alone is not grounds for dismissal. A person who is dismissed because they are HIV-positive should not accept this under any circumstances.

A dismissal can be legally justified, however, if a person is gravely ill for a long period of time; for example, if an AIDS-related illness has been diagnosed and the condition is not expected to improve with medication. In a case such as this - as in the case of other illnesses - employers are permitted to give notice of dismissal on health grounds ("krankheitsbedingte Kündigung").

Instant dismissal

It sometimes happens that employers dismiss people with HIV without notice when they learn about their HIV status. This is not legally permitted. You should defend yourself against such a dismissal, and seek advice (see Legal help).

Legal help

Anyone affected by an unfair dismissal should seek legal help as soon as possible. AIDS service organizations can help you to do this and will be there to assist you.

Legal action can have two possible outcomes. The industrial tribunal ("Arbeitsgericht") may decide that you are permitted to continue working at the company. It's possible, however, that you wouldn’t want to do this, because you face discrimination at work or are in dispute with your employer. In such cases, a termination contract is possible, which may be linked to (financial) compensation.

NOTE: legal action against a dismissal must start within three weeks of the dismissal; after that, you will not be able to take any action.

Should I say something? Many people ask themselves this question at work. There's no general answer, rather, it depends on the individual situation. The decision should be well considered, because it's not possible to take back the news that you are HIV-positive. There is no requirement to tell your superiors or employer. A counseling session at an AIDS service organization can help you reach a decision.

Reasons to out yourself

For many people, keeping their infection secret is a burden. They consider it a relief to tell their superiors and colleagues about their HIV-status. Often, any fears about rejection prove to be unfounded. Some HIV-positive people report that they were surprised by how much backing and support they suddenly experienced in the workplace. Outing yourself can improve your self-confidence and increase the enjoyment of your work.

Reasons not to out yourself

Unfortunately, there are also people who have had terrible experiences with outing themselves at work. They have received notice of dismissal or have been forced from the job by workplace hostilities, for example. Unfortunately, chitchat and gossip are also to be expected. Such things are not permitted, and it is possible to legally defend yourself. Nevertheless, such a situation can be very taxing.

Chitchat and gossip

In the majority of cases, if it becomes known that a staff member is HIV-positive, other colleagues will talk to each other about it. This may seem inevitable - but it is illegal. According to law, telling others about a person's HIV-status is not permitted if the HIV-positive person does not wish it.

However, it is not punishable by law if someone does gossip about the HIV-status despite this. All you can do is file for an injunction; in other words, legally ensure that the infection does not continue to be spoken about.

If it can be proved that financial damages have resulted from the gossip, it is also possible to sue for damages. This might be the case, for example, if a person loses their job because their HIV-status becomes known.

Bullying

Bullying means that a person feels tormented or subjected to hostile treatment at work from their colleagues or superiors. This might start with whispers behind closed doors and can extend all the way up to harassment, which might include depriving the person of work or openly threatening them. Sometimes, bullying is done with the aim of forcing a colleague out of the company.

Bullying can take a heavy psychological toll and can make people sick. Those affected should seek help, for example from their manager. If the manager is involved in the bullying, the union, staff association or shop stewards committee ("Betriebsrat") may be able to help. A counseling session at an AIDS service organization is also recommended.

Bullying is illegal. A lawyer can help you enforce the law and defend your rights. However, bullying is often difficult to prove. A court case may be protracted and can be a psychological burden in itself. A counseling session may also be of help here, before you decide on how to proceed.