IR 281 Seminar in Philippine Labor Relations Policy, UP SOLAIR

HIV and OSH are they

LMR concerns?
-Prof. Rene Ofreneo

HIV and OSH are they LMR concerns?

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HIV and OSH are they LMR concerns?

Background
There were a total of 1416 new HIV cases in August 2011, one month before the third
quarter of the year, which is nearly equivalent to the number of cases reported in 2010 (n=1591).
Young men and women at their most productive ages from 20 to 49 old accounts for 91% of all
cases reported in 1984 to August 2011. They make the bulk of the Philippine labor force which is
estimated at 39.928 M in July 2011.
This year (2011), data from the Philippines AIDS Registry show that six to seven new HIV
cases are reported daily, while there were two in 2009, and one in 2007.
The Philippines HIV and AIDS epidemiology is increasingly driven by local transmission
and fueled by risky behaviors, particularly unprotected and sharing of infected needles and
syringes for drug use, among Filipinos 20-49 years old.
The business workplace can well become a staging area for HIV and AIDS prevention,
treatment, and care and support information services. Setting up workplace policies and programs
on HIV and AIDS that are well embedded in company culture have potential to deliver real and
lasting benefits to workers and their families, enterprises and to the country as a whole.
(Philippine AIDS Registry, August 2011)

Why HIV and OSH* are LMR** concerns?

Human immunodeficiency virus (HIV) and other blood borne diseases are transmitted by
body fluids containing blood; preventing exposure to HIV on the job really means preventing
exposure to these substances. It is the actual contact with blood on the job that puts a worker at
risk. Workers, especially health care workers, may come into contact with blood on the job by a
blood splash to the eyes, mouth, or nose or they may be one of the estimated one million health care
workers stuck by a needle every year.
*OSH-Occupational Safety Health
**LMR-Labor-Management Relations

Workers may have several concerns or questions regarding their exposure or possible exposure to
blood and blood borne diseases at work. Some of the questions workers most often ask include:

Which body fluids put me at risk?

How can I protect myself?
What should I do if I am exposed to blood or body fluids containing visible blood at work?
Whom should I call? Whom should I tell?
Why cant I know which of my clients or patients has HIV?

It is fortunate, if workers practice universal precautions and work to make sure that standards and
protocols are enforced in the workplace, their risk of exposure to HIV and other blood borne
diseases decreases.
HIV and OSH are they LMR concerns?

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Blood borne diseases-like HIV and Viral Hepatitis (Hepatitis B and Hepatitis C) are caused by
viruses. Viruses are transmitted by contact with blood, semen, vaginal secretions, and certain other
bloody fluids. If any of these viruses get into a persons body, he or she may become infected with
virus and get sick. http://www.hivatwork.org./impact/concerns_workers.cfm
HIV has no known cure, although antiretroviral drugs can discourage replication and halt
the progress of the disease, they cannot cure it entirely
(http://www.wisegeek.com/what-are-antiretroviral-drugs.htm).

An employee positively diagnosed of HIV could not be terminated by his /her employer.
This is one employment condition that is exempted under Article 284 of the Labor Code of the
Philippines which reads as follows:
Disease as a ground for termination. - An employer may terminate the services of an employee
who has been found to be suffering from any disease and whose continued employment is
prohibited by law or prejudicial to his health as well as to the health of his co-employees.
Why such condition is exempted? The advent of RA 8504 was a deliberate response to the policy
environment - economic and social scene, thus, this particular labor code provision is now
superseded by this HIV law since its enactment in 1998. The law, better known as the Philippine
AIDS Prevention and Control Act is the brainchild of the Philippine National AIDS Council (PNAC);
through the councils hard work, changing the landscape of one aspect of Philippine labour
relations . Among the labor provisions of the HIV Law are enumerated hereunder:
Art. 1. Section 6. HIV/AIDS Education in the Workplace-All government and private employees,
workers, managers, and supervisors, including members of the Armed Forces of the Philippines
(AFP) and Philippine National Police (PNP), shall be provided with the standardized basic
information and instruction on HIV/AIDS which shall include topics confidentiality in the
workplace and attitude towards infected employees and workers.
Art.6. Section 30. Medical Confidentiality- All health professionals, medical, instructors, workers,
recruitment agencies, insurance companies, data encoders and other custodians of any medical
record, file, data, or test results are directed to strictly observe confidentiality in the handling of
medical information, particularly the identity and status of persons with HIV.
Art. 35 Section 35. Discrimination in the Workplace- Discrimination in any form from preemployment to post-employment, including hiring promotion or assignment, based on the actual,
perceived or suspected HIV status of an individual is prohibited. Termination from work on the sole
basis of actual, perceived or suspected HIV status is deemed unlawful.
Mandatory HIV testing as requirement for pre-employment and during companys annual
physical examination is also an unlawful act.
The protective clauses of the law do not prevent us to face the crucial question posed by and
to society if an HIV positive public safety or health care employee endangers the life of a person that
he assists.
HIV and OSH are they LMR concerns?

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HIV-Educated stakeholders acknowledged that an HIV infected healthcare worker posed no

risk of transmission to a patient if the worker adhered to universal precautions and did not perform
invasive procedures. Realistically, it is quite improbable for a healthcare or public safety employee
to infect a patient. Studies have shown that a vast majority of occupational transmissions of HIV
occur through needle. To transmit the infection otherwise would require a similarly extraordinary
combination of events such as a worker cutting himself and then bleeding directly into the open
wound of the person assisted. The risk of contracting HIV from a health care or public safety
employee is staggeringly small when one considers the number of employees in public safety and
health care professions and the number of people they are assisting.
(PDF) OCCUPATIONAL RISK: THE OUTRAGEOUS REACTION TO HIVdevel-drupa;.law.csuohio.edu//ggupta.pdf.

In the Philippines, the employment issue of HIV possible transmission also co-exists with
occupational safety health and all matters about making the physical conditions of work safe,
thereby making the physical condition of work safe, preventing short- or long term illnesses, it is
also about ensuring that workers who have contact with hazardous substances and machines are
trained in their safe use. Workers in the formal sector are protected by laws that provide health
and safety standards. http://www.homenetseasia.org/OSH%20BRIEF%20FINALApril22.pdf
The 3 Reasons for Occupational Health and Safety:
1.

Moral reason: It is the idea that no-one should have to risk their health for the sake of work,
and that any risks at work can be reduced or eradicated altogether.

2.

Economic reason: If someone is injured at work, then it can cost the whole of society a great
deal of money. Primarily, it can cost the tax payer a lot of money, because of medical costs
associated with any injury.

3.

Legal reason: Firms are legally required to invest in occupational health and safety in order
that they never face legal proceedings resulting from an injury in the workplace.

http://www.articlesnatch.com/Article/The-3-Reasons-For-Occupational-Health-And-Safety/1085103

Who are supposed to be knowledgeable?

Some members of business sector are not yet ready to face & accept the changes,
responsibilities and challenges attached in the implementation of employing people living with HIV
despite of many institutional policies initiated by civil societies, framed, passed by the legislative &
executive branches of our government and recognized by international communities.
A department order was released and signed last year by Secretary Baldoz, D.O. 102-10:
Guidelines for the Implementation of HIV and AIDS Prevention and Control in the Workplace
Program, aimed to create HIV policies in private and public workplaces. Surprisingly, in this IR
281 class where sixteen (16) are Human Resources, two (2) are Employment Relations
practitioners, with the exception of two (2) lawyers who are HR approaches savvy hardly knew
such legislation and policy exist until I reported this topic in this class.
HIV and OSH are they LMR concerns?

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The Bureau of Labor and Employment Statistics (BLES), in coordination with the DOLE
Regional Offices, conducted the 2009/2010 BLES Integrated Survey (BITS) of non-agricultural
establishments employing 20 or more workers nationwide. The main objective of the survey is to
generate integrated data sets on employment of specific groups of workers, occupational shortages
and surpluses, balancing work and family responsibilities and working time arrangements,
occupational safety and health practices, and occupational injuries and diseases.
This series of LABSTAT Updates specifically focuses on the results of the survey on the
extent of unionism and collective bargaining in the country, balancing work and family
responsibilities and working time arrangements, and health and safety practices
adopted/implemented by 23,723 estimated establishments as of June 2010.
Vol. 16 No. 3 January 2012
Safety and Health Practices in Establishments: 2010
(Fourth of a Series on Industrial Relations Practices)

Strict observance of medical confidentiality of status and identity of person with HIV were likewise
implemented in 29.0% of the establishments.
Only a small proportion of establishments had policies on HIV and AIDS prevention (16.0%) and
nondiscrimination of workers confirmed/suspected/perceived to have HIV
infection (13.4%).
Meanwhile, only 15.5% of the establishments provided seminars on HIV and AIDS prevention in
the workplace.
Although, HIV and AIDS Education in the Workplace is in place for 5,246 establishments, this is only
a quarter or small portion of 22.1% of the total establishments surveyed.
Lastly, HIV testing as pre-condition to employment is being practiced by 2,800 establishments or
roughly 11.8% proportion.
Vol. 16 No. 3 January 2012
Safety and Health Practices in Establishments: 2010
(Fourth of a Series on Industrial Relations Practices)

Does HIV workplace discrimination exist?

In our NGO alone (Positive Action Foundation Philippines Inc. or PAFPI), we received few
cases of varying nature and circumstances of employees who experienced stigma & discrimination
from their respective workplaces. These employees sought our NGOs assistance in their labor
relations issues that almost threatened (two did) their security of tenure and what makes it more
dynamic about their situation is the diversity of the industry they come from: banking, law firm,
catholic university, etc. I will use the word case in addressing their situation.
Two of the cases were resolved thru conflict management mechanism; one was given the
option to resign with monetary settlement and the other resorted to utilizing a quasi-judicial body.
The circumstance related to us by this bank employee is a perfect example of a perceived or
suspected situation. After incurring a month-long sick leave, he was ready to resume his post upon
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a fit-to-work recommendation from his personal doctor. As a company policy, a clearance must be
secured from the company doctor before returning to work, instead, he was asked to undergo HIV
test before he will be able to perform his duty or resume to his post. No clearance, no return to
work policy. The company doctor suspected him; diagnoses in his medical certificate were
symptoms and manifestation of a patient suffering from HIV infection. To cut the story short,
management defense during the confrontation was: the employee is a bank teller; handling bills and
coins which was part of his day-to-day activity will put his health in danger. Definitely, management
would not admit that their worries were the other way around because the perceived sickness
would be prejudicial to the health of the bank tellers co- employees, nonetheless, their bank
customers & clients, given the job description of his frontline function. Our lawyer requested the
management people to accommodate the employee to a position that would be unlikely prejudicial
to the health of everyone, but management insisted they could do otherwise. After series of
deliberation and confrontation and a threat of constructive dismissal complaint, the concerned
employee was retained in the bank company and assigned to a different department through lateral
transfer. The mandatory testing forced to him to undergo was permanently shelved.
The case of this nurse-clinical instructor of a famous catholic university never led his
employer to suspect or perceive any of his current health condition. After willfully initiating an HIV
test with a reactive result, he actually confided his HIV status to the Faculty Dean. With a complete
trust that Dean would never reveal his secret to anyone, he was surprised when the former
summoned him in her office and broke the news that his employment contract will never be
renewed after his probationary period even he had excellent job performance. The Dean compelled
him not to perform the clinical aspect of his job particularly in the medical and surgery section
where he was regularly assigned after the lecture part of his tour of duty because danger of getting
exposed to, getting infected or infecting others was higher. She offered him a review class stint
which was a part time position where chances of regular position could not be assured of. After
proving the constructive dismissal against the University, our advocate lawyer defied the charges
and reminded the management people of the universal or standard precautions adherence and if
the Universitys management was not convinced, they can place the employee to an area that will
not compromise the employees and co-employees health. Finally, after two sets of deliberations;
the clinical instructor-nurse was reinstated to the same working condition after the day he was
constructively dismissed but the managements lawyer insisted that as an institution, they have
moral obligation to fulfill to their students and parents, this employee should need to sign a waiver
stating that the management should not be responsible in case his health will be at stake and
known.
The third case: A single parent who was barely three months in a law firm job. He notified
his office that he will be on a half day duty because he needed to go to RITM**** Hospital for he
was not feeling well. He did not know that by mere mentioning of the acronym RITM made his
officemates skeptical, why go to a hospital which is too far when there are available hospitals in the
area? Inquired to him by the staff who received his call, to satisfy the curiosity of this officemate,
she searched the internet and find out that RITM is a treatment hub for people with HIV. The
following days in the office have never been the same again. The kitchen utensils for employees use
were kept from him. News spread so fast in the office that even his immediate boss who is a lawyer
becomes indifferent to him. He expected his boss would defend him, and did otherwise, though. He
saved all the guts to confront the former for spreading the news of his unconfirmed health
condition. The lawyer-boss averred he knew nothing about his health condition but since
confirmation came out from the horses mouth, it was no longer a rumor. This was the same boss
who framed & accused him up in a computer-related fiasco. A memo was given to him ; he already
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knew this was a cunning way for him to have a graceful exit as how he described this forced
resignation. Due process is a tedious process for him to wait and he could no longer bear the
stigma and discrimination atmosphere in the law office, he accepted the separation pay offered to
him by the law firm and he now works in a non-governmental organization. I gave this employee
an unsolicited advice of contesting his implicit dismissal through compulsory arbitration by filing a
labor case in National Labor Relations Commission which is a conflict resolution mechanism. He
declined my advice, according to him, he had enough emotional setbacks aside from the financial
burden it will cost him, adding that he is not yet prepared to disclose his status.
***RITM- Research Institute Tropical Medicine

On Oct.14, 2011, a dermatologist visited our office to share his own story. The skin care
clinic where he works found out of his HIV status. He told us that the HR officer talked to and
forced him to resign upon the knowledge of his HIV status with the same reason similar from the
rest fear of infecting co-workers and customers. We educated him about his rights and the HIV
law. During that time, he was contemplating whether he will resign or not. several weeks past, we
later learned from our Information Officer Au de Castro( focal person for labor disputes of HIV
positives) that the HR of the skin care clinic informed him that he need not to resign and can
continue his employment.
Another case which utilized labor dispute resolution or conflict resolution mechanism was a
licensed architect who was illegally suspended by his employer. The management knew his HIV
status since last year after he voluntarily divulged his condition and this did nothing to change the
stand of the company to keep him as a regular employee. Things changed roughly the following
year when he did not inform the company that he would be absent the day after New Years Day of
2012. Without following the progression of the specific offense accused of him, he was suspended
for 30 days. The same penalty was imposed on him when he was caught smoking inside the
company premises and later on constructively dismissed, incurring a double jeopardy sanction for a
single offense. These consecutive unfair sanctions led him to go to the National Labor Relations
Commission to redress his grievances. He was able to withstand the adversarial nature of the
mechanism but then he opted for amicable settlement, letting go of his previous claim for
reinstatement because according to him, it was no longer emotionally bearable for him to partake
another confrontation and the least go back in the company. At least, he tried to get out of the usual
conventional way of settling a dispute, which is outside the auspices of the company and having at
least a taste of what was supposed to be a quasi-judicial type of addressing his labor dispute which
is so far the first documented case our organization has in so far as workplace discrimination is
concerned. At present, the architect is doing a free-lance job.

Leading us to where?
These are only few of the issues, challenges & concerns HIV positive employees are facing in
their respective workplaces. HIV workplace policies are relatively new in the business culture of
this country and there are a lot to be researched, learned, experienced and even stories to tell. The
cases mentioned so far are the documented ones, but how many workers suffered and still suffer,
that we do not know. Confidentiality is the underlying reason for PLHIV to stay undisclosed for fear
of being stigmatized, labeled, and discriminated and worse, constructively dismissed. It is pathetic
that HIV law has been in place for over a decade but often over looked, hardly implemented and
enforced in the workplace. According to Atty. Andres Tupas, our advocate lawyer in a conversation
after one of our management confrontations, which he originally said it in Filipino, In practicality,
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Ana, no need for DOLE to issue D.O. 102-10 because the specific labor provisions in RA 8504 are
already enough to safeguard and protect the welfare of these infected working people. And not to
mention the ILO Code of Practice, however, some players in the business sectors opt to be
complacent and prefer these HIV labor related issues be blown out of proportion into labor
disputes and become burdensome management concerns. But the questions I raise now are: Do our
labor quasi-judicial courts already have guidelines for labor dispute settlements wherein the PLHIV
complainants identity should be dealt with confidentiality? What about creating special NLRC
Rules of Procedure for Compulsory Arbitration, a conflict resolution mechanism to safeguard the
confidentiality of Employees Living with HIV? Can the procedures for Voluntary Arbitration be HIVcustomized/sensitized, too? This is one public policy that does not stay in a vacuum or remain
static; it somehow influences one way or the other its environment and stakeholders.

RECOMMENDATION:
1. Strict implementation and enforcement of the salient features of Department Order no. 10210, in public and private entities, imposing the equivalent sanction for non-compliance as
stipulated in the objective/penalties of the said guidelines and law respectively;
2.

Strict monitoring and evaluation of HIV Law and D.O. 102-10, specifically on the rate of
HIV-related attrition/turnover, identifying & measuring the emerging key indicators such
as breach of confidentiality , forced resignation, physically unfit for work and offering of
salary package in exchange of resignation which are involuntary resignation in essence as
ways to circumvent the law;

3. Inclusion of HIV/AIDS Education in Pre-Employment Orientation Seminar (PEOS) to job

seekers to be facilitated & coordinated by LGUs through job fairs, training, seminars and
other similar activities, focusing and giving emphasis on the HIV employees rights in the
workplace.
Enhanced on: November 25, 2011
April 13, 2012
Paper Submitted by:
Ana Portia Banal-Carza
10/15/2011
As partial fulfillment of
IR281
Specializing in Labor-Mgt. Relations
Master of Industrial Relations

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