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Charlie Sheen’s HIV can’t usually be held against him under NZ employment law

24 November 2015


Headlines last week were dominated by the news of Charlie Sheen's admission that he had HIV.

The massive attention given to this news is a reminder that the disease still attracts strong emotions reminiscent of the 1980s and early 1990's when the disease first emerged and a diagnosis was an almost certain death sentence.

Today, there remains no cure, but there are now effective treatments to ensure that those afflicted by the disease can continue to live normal lives.

However the news of Sheen has also demonstrated that there is still considerable stigma attached to the disease; and the stigma can often have a devastating effect comparable to the physical symptoms of the disease.

Sheen stated that when he was told his diagnosis, he felt ashamed and became depressed by his condition. This depression later led to alcohol and drug abuse.

It would appear Sheen's vulnerability led to his exploitation. Sheen said he had been blackmailed upwards of $10 million by people who threatened to break the news that he had HIV.

Sheen commented that his public admission was to "release myself from this prison today".

When asked how the revelation would impact on his pursuit of work, Sheen was able to give some positive news.

Sheen stated that he still had several opportunities, shows and films he could put "start dates on".

Sheen said that the people behind these opportunities knew he was going public with his news, but they were happy for him to continue working. He was "still the best person for the job".

Despite what readers may feel about Sheen's somewhat chaotic life, most would consider it positive that his diagnosis has not crippled his employment opportunities.

But how would Sheen fare were he an employee in New Zealand, and are there any legal protections for those with HIV regarding their employment? Can an employer ask if a person has HIV, and is an employee obliged to say?

Under the Human Rights Act the general rule is that an employer cannot discriminate on the basis of a person's disease. However there are exceptions to this rule.

An employer may discriminate if the work, or work environment presents a risk of the person infecting other persons, and it is not reasonable for the employer to take that risk.

Even during the early outbreak of the disease, when there was little in the way treatment options, there was a small risk of a person transmitting HIV. HIV can only be transferred through sexual fluids, blood, breast milk or rectal fluids coming into contact with the mucous membrane or broken tissue. One would expect this would not be occurring in most workplaces.

That said, there may be some workplaces where this risk is present, and the employer would be entitled to discriminate. These workplaces are the exception, and before an employer could rely on this exception, they would require a professional assessment of that risk.

If an employer has no grounds to discriminate on the basis that the person is HIV positive, they would have no reason to ask if a person has HIV (and should not). Similarly, an employee has the right to stay quiet if the employer has no valid reason to know whether they have HIV or not.

But the stigma behind HIV has an effect which goes beyond simply finding employment. It may harm those within employment too. It is arguable that employers should protect employees from this stigma within the workplace.

WorkSafe guidelines state that bullying is repeated and unreasonable behaviour which endanger person's health.

Regardless of what medical science says, people remain anxious around someone who is HIV positive.

This can lead to behaviour such as isolating or avoiding a person who has HIV. The effects of this reaction (or even the potential for this reaction) may be profound.

The isolation an HIV sufferer can experience may lead to depression. Sheen has shown this.

The stigma behind HIV could therefore be considered a workplace hazard and employers are obliged to manage this. Education is perhaps the best response.

Understanding and support for those with HIV has improved considerably from when HIV first emerged.

However, Sheen has been a public demonstration that the hangover from these days continues. Many with HIV still feel that they must keep their condition secret, and this can be to their harm.  If this is to change, employers are in a powerful position to help remove the stigma for those with HIV.

Cullen - The Employment Law Firm is one of only eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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