6 November, 2019
Recent Developments
Republic Act No. 11166, otherwise known as the "Philippine HIV and AIDS Policy Act" was approved by the Philippine President on 20 December 2018. The Philippine HIV and AIDS Policy Act became effective on 25 January 2019, after its publication in the Official Gazette. The Philippine HIV and AIDS Policy Act repealed its predecessor, Republic Act No. 8504, otherwise known as the "Philippine AIDS Prevention and Control Act of 1998."
On 3 October 2019, the Implementing Rules and Regulations of the Philippine HIV and AIDS Policy Act (IRR) became effective. Although the IRR basically reiterates the provisions of the Philippine HIV and AIDS Policy Act, employers should, nevertheless, be aware of the potential employment implications of the recent regulation.
What the law says
Under the Philippine HIV and AIDS Policy Act, all private employers and employees shall be regularly provided with standardized basic information and instruction of HIV and AIDS, including topics on confidentiality in the workplace and reduction or elimination of stigma and discrimination. The Department of Labor and Employment (DOLE) shall provide free standardized basic information and conduct instruction for the private sector.
The Philippine HIV and AIDS Policy Act prohibits misinformation on HIV and AIDS, which includes false and misleading advertising or claims in any form of media.
The Philippine HIV and AIDS Policy Act strengthens and focuses on the following concepts: confidentiality, prohibition on discriminatory practices, and non-compulsory nature of HIV testing.
Confidentiality
The confidentiality and privacy of any individual who has been tested for HIV, has been exposed to HIV, has HIV infection or HIV- and AIDS-related illnesses, or was treated for HIV-related illnesses, shall be guaranteed. It shall be unlawful to disclose, without written consent, information that a person has AIDS, has undergone HIV-related test, has HIV infection or HIV-related illnesses, or has been exposed to HIV except in the following instances:
(a) when complying with reportorial requirements of the national active passive surveillance system of the Department of Health, provided that the information related to a person's identify shall remain confidential;
(b) when informing other health workers directly involved in the treatment or care of a Person Living with HIV, provided that such worker shall be required to perform the duty of shared medical confidentiality; and
(c) when responding to a subpoena duces tecum and subpoena ad testificandum issued by a court with jurisdiction over a legal proceeding where the main issue is the HIV status of an individual, provided that the confidential medical record, after having been verified for accuracy by the head of the office or department, shall remain anonymous and unlinked and shall be properly sealed by its lawful custodian, hand delivered to the court, and personally opened by the judge; provided, further, that the judicial proceedings be held in executive session.
Discriminatory Acts and Practices
Discrimination in the workplace is understood as the rejection of job application, termination of employment, or other discriminatory policies in hiring, provision of employment and other related benefit, promotion or assignment of an individual solely or partially on the basis of actual, perceived, or suspected HIV status. Discrimination in the workplace is prohibited and punishable.
Non-compulsory HIV testing
The Philippine HIV and AIDS Policy Act encourages voluntary HIV testing. Compulsory testing is only allowed in the following instances:
(a) when it is necessary to test a person who is charges with any of the offenses punishable under Articles 264 and 266 on serious and slight physical injuries, and Article 335 and 338 on rape and simple seduction, both of Act No. 3815 or the "The Revised Penal Code," as amended, and as also amended by Republic Act. No. 8553, otherwise known as "The Anti-Rape Law of 1997;"
(b) when it is necessary to resolve relevant issues under Executive Order No. 209, otherwise known as "The Family Code of the Philippines;" and
(c) as a prerequisite in the donation of blood in compliance with the provisions of Republic Act No. 7170, otherwise known as the "Organ Donation Act of 1991," and Republic Act No. 7719, otherwise known as the "National Blood Services Act of 1994."
Implications for employers and contractors
Under the Philippine HIV and AIDS Policy Act, employers and contractors are required to:
(a) promulgate rules and regulations prescribing the procedure for the investigation of discrimination cases and the administrative sanctions thereof;
(b) create an ad hoc committee on the investigation of discrimination cases; and
(c) conduct meetings, through the committee, to increase the knowledge and understanding of HIV and AIDS, and to prevent incidents of discrimination.
Employers and contractors should be mindful of the hefty penalties imposed as a result of violating the Philippine HIV and AIDS Policy Act. An employer or contractor who violates the provisions on confidentiality shall, upon conviction, suffer the following penalties:
(a) Six months to two (2) years of imprisonment for any person who breaches confidentiality, and/or a fine of not less than Fifty thousand pesos (PhP 50,000.00), but not more than One hundred fifty thousand pesos (PhP 150,000.00), at the discretion of the court;
(b) Two years and one (1) day to five (5) years of imprisonment for any person who causes the mass dissemination of the HIV status of a person, including spreading the information online or making statements to the media, and/or a fine of not less than One hundred fifty thousand pesos (PhP 150,000.00), but not more than Three hundred fifty thousand pesos (PhP 350,000.00), at the discretion of the court; and
(c) Five years and one (1) day to seven (7) years of imprisonment for any health professional, medical instructor, worker, employer, recruitment agency, insurance company, data encoder, and other custodian of any medical record, file, data, or test result who breaches confidentiality, and/or a fine of not less than Three hundred fifty thousand pesos (PhP 350,000.00), but not more than Five hundred thousand pesos (PhP 500,000.00), at the discretion of the court.
An employer or contractor who violates the provisions on discriminatory acts and practices shall, upon conviction, suffer the penalty of imprisonment of six (6) months to five (5) years, and/or a fine of not less than Fifty thousand pesos (PhP 50,000.00), but not more than Five hundred thousand (PhP 500,000.00), at the discretion of the court, and without prejudice to the imposition of administrative sanctions such as fines, suspension or revocation of business permit, business license or accreditation, and professional license.
Actions to consider
Employers or contractors will be affected by Philippine HIV and AIDS Policy Act. In the exercise of prudence, current HIV/AIDS workplace policies should be revisited to ensure compliance with the requirements of the law.
Conclusion
In view of this development and together with the government's objective to impose stricter rules in ensuring the safety and health of workers, employers may be under greater scrutiny by the DOLE, particularly during labor inspections. Employers or contractors are recommended to take a pro-active stance by reviewing its current policies and align it with the new law.
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