The notification was published on 21st April 2017, by the Ministry of Health and Family Welfare for passing the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 (hereinafter referred to as “said Act”). The said Act came into force on 10th September 2018 by the Central Government.
The said Act is in pursuit of prevention and control of dissemination of HIV and AIDS, it forbids discrimination against persons with HIV and AIDS. Further, it illustrates numerous grounds on which differentiation against HIV-positive persons and those living with them is prohibited. The said Act forbids unfair treatment of HIV-infected people on any grounds. It further forbids negation or discontinuation of healthcare services, right of movement, right to reside, purchase, rent or occupy property and hold public or private office etc. Additionally, as per the said Act the diffusion of HIV and AIDS has to be prevented and controlled. The condition for HIV testing as a criterion for attaining employment or obtaining health care or where education is also not permissible.
APPLICABILITY ON ESTABLISHMENTS:
The said Act applies to Establishments which include Body Corporate or Co-Operative society or any organization or institution or two or more persons jointly carrying out a systematic activity for twelve months or more at one or more places for consideration or otherwise, for the production, supply or distribution of goods or service.
KEY DEFINITIONS IN THE ACT:
- As per Section 2(h), the term “HIV-affected person” is defined as an individual who is HIV-positive or whose partner (with whom such individual normally resides) is HIV-positive or has lost a partner (with whom such individual resided) due to AIDS.
- As per Section 2(s), the term “Protected person” is defined as a person who is:
- ordinarily living, residing or cohabiting with a person who is an HIV-positive person
- ordinarily lived, resided or cohabited with a person who was HIV- positive.
- As per Section 2(f), the term “Establishment” is defined as a body corporate or Cooperative society or any organization or institution or two or more persons jointly carrying out a systematic activity for twelve months or more at one or more places for consideration or otherwise, for the production, supply or distribution of goods or services.
- As per Section 2(h), the term “Healthcare provider” is defined as any individual whose vocation or profession is directly or indirectly related to the maintenance of the health of another individual and includes any physician, nurse, paramedic, psychologist, counsellor or other individual providing medical, nursing, psychological or other healthcare services including HIV prevention and treatment services.
Key highlights for the safeguarding of HIV and AIDS, which should be complied by the Establishment:
- Non-discrimination against people infected with and affected by HIV and AIDS:
One of the foremost principles in International and human rights laws is Non-discrimination. As per the guidelines provided under the policy, discrimination against HIV-positive persons is prohibited. Furthermore, it also extends to people affected by HIV and AIDS. Every establishment has to ensure that no HIV-positive person should be-
- Denied or terminated from employment or occupation;
- healthcare and educational settings, government/private organizations;
- against using public utilities and sharing resources;
- for holding public or private offices;
- Denied or subjected to discontinuation or unfair treatment concerning the right to movement;
- Segregated, isolated and ostracized;
- Require HIV testing as a pre-requisite for obtaining employment, or accessing healthcare services, education services;
- Denied or treated unfairly concerning the right to reside, purchase, rent and occupation of property. Every protected person has the right to live in a shared household, cannot be evicted from it, and has the right to use its facilities without discrimination.
- Confidentiality related to one’s HIV status and related data:
- It is prohibited to disseminate the feeling of hatred by words either spoken or written to publish, propagate, advocate or communicate by signs or visible against any protected persons or group of protected persons. Further, it is forbidden to disseminate, broadcast or display any information, advertisement or notice, which may reasonably be construed to demonstrate an intention to propagate hatred or which is likely to expose protected persons to hatred, discrimination or physical violence.
- The said Act further emphasized that informed consent from a person has to be obtained before undertaking an HIV Test. Further, without informed consent medical treatment, medical interventions or research cannot be conducted on a protected person.
- No person has to disclose their HIV status according to Section 8 of the said Act. There are certain exceptions to it:
- By a court order in the interest of justice for the determination of issues in the matter before it
- No person shall disclose or be compelled to disclose the HIV status or any other private information of another person imparted in confidence or a relationship of a fiduciary nature.
- In the case of Establishments, Educational, Occupational, Prison settings, Faith-based Organizations, Corporate Houses, etc., it is the responsibility of employers to ensure that all staff members are oriented on concepts of consent, disclosure and confidentiality related to HIV and AIDS and that they don’t disclose HIV-related information. It is also the moral responsibility of co-workers and other staff members to not engage in activities which breach confidentiality.
- Every such HIV-positive person who has been counselled and understands HIV, must take precautions to prevent transmission. This may involve risk reduction strategies or disclosing their HIV status before sexual or needle-sharing activities.
- It is significant to maintain the confidentiality of data by adopting data protection measures in every Establishment which is keeping the records of HIV-related information of protected persons.
- A Data Management Committee should be formed at each establishment to review and provide appropriate recommendations. A Data Management Committee or the heads of concerned establishments shall have accountability and liability for security in the establishment.
- Every healthcare service and other establishments which are at significant risk of HIV exposure must adhere to the guidelines to guarantee a safe work environment. It will apply to all establishments consisting of one hundred or more persons (whether as an employee, officer, member, director, trustee or manager). Furthermore, in the case of healthcare services, it will apply to twenty or more persons.
- Constitution and Display of Policy:
- The model HIV and AIDS policy shall be adopted by every establishment as amended and updated from time to time by the appropriate authority. The text of the HIV and AIDS policy shall be communicated to all persons working in the establishment and it should be posted on special boards in English and the language understood by the majority, by the person in charge of or responsible to the establishment. The establishment shall conduct annual training sessions for persons working in such establishments to understand and implement the HIV and AIDS policy.
- Grievance redressal Mechanism:
Appointment of Complaints Officers at Establishments
- Every Establishment having one hundred or more persons, must appoint a Complaints Officer within one hundred and eighty days from the commencement of the said Act, to handle complaints about Act violations.
- The establishment shall within thirty (30) days of appointment, provide training to the Complaints Officer.
- A complaint must be made in writing to the complaints officer within three months from the date that person becomes aware of the alleged violation and the complaint has to be decided within 7 working days by the Complaint Officer.
- The Complaint Officers shall in case of violation:
- Direct the establishment to take measures to rectify the violation;
- Counsel the person who has committed the violation, and requires such person to undergo training about HIV and AIDS and a fixed period of social service.
- Establishments which are necessitated to appoint a complaints officer, shall do the following-
- Require to arrange workshops and awareness programmes annually to make its employees aware of the provisions of the said Act;
- Orientation programmes for the Complaints Officer;
- Provide necessary facilities for the Complaints Officer to decide the complaints;
- Make available such information as the Complaints Officer may require in deciding the complaint.
- Appointment of Ombudsman at the State level:
- The state government shall appoint one or more Ombudsmen at the state level to dispose of the complaints from the aggrieved person. The ombudsman will investigate complaints about violations of the said Act, specifically regarding acts of discrimination. The ombudsman can request information from any person, who is legally obligated to provide it. The ombudsman shall keep the records as per the state government’s prescription. The Ombudsman shall within thirty (30) days from the receipt of such complaints, pass such order after giving the fair opportunity of being heard to the parties. Further, in case of a medical emergency, the order from the ombudsman must be passed within Twenty-four (24) hours.
- Appointment of Complaints Officers at Establishments
- Penalties in case of Non-Compliance:
- No person is allowed to express hatred through spoken or written words, signs, visible representation, or any other means against protected individuals or groups. Additionally, spreading information or content likely to promote hatred, discrimination, or physical violence towards protected persons is prohibited. In case of contravention, the said person shall be punished with imprisonment for a term which shall not be less than three months but which may extend to two years and with a fine which may extend to one lakh rupees, or with both.
- Failure to comply with the ombudsman order within the specified time, may result in a fine of upto ten thousand rupees. If the failure persists an additional fine of upto five thousand rupees every day during the continuation of the failure will be imposed.
- Whoever discloses the information about the HIV status of a protected person obtained during or related to a court proceeding is punishable by a fine of upto one lakh rupees unless the disclosure is as per court order or direction.
A pivotal role in HIV/AIDS prevention and support should be played by companies. At every organization or company, it is important to have an HR policy in place wherein important provisions mentioned under certain Acts i.e., HIV and AIDS Act, Transgender Act, Rights of Persons with Disabilities Act and Prohibition of Sexual Harassment at Workplace Act, etc., should be included to ensure a smooth and safe working environment for all employees at a workplace. Corporate resources should be mobilized to protect the employees. The rationale for the organization is to engage in workplace programmes to provide special support to workers in a small platform to hold their opinions and raise the issues they face in the workplace. HIV/AIDS impacts many social and economic issues, such as occupational health and safety, staff morale, human rights and the availability of a productive and well-educated workforce. Due process should be formulated for strict compliance with HIV/AIDS policy to ensure a safe working environment. Henceforth, the organization must create a safe working environment for every individual associated with it.