A number of questions have been submitted to me recently concerning what an employer can do to know about the health situation of his / her employees.
A leading case was decided on this in 1998 about HIV-infection; it gives also an idea on how other kinds of infection would be dealt with.
In January 1998, a well noticed judgement by a Labour Court introduced the debate on HIV-Tests in Belgian Labour Law. Some time before, Mr X, a physician, had been hired by a public centre for social aid (“CPAS”) to operate in its hospital. He was submitted to a medical check even though this was not one of the conditions for getting the job. Moreover, this check included a HIV-test but Mr X did not know this at that moment. Ten days after the medical check he was dismissed on the ground that he bore the HIV-virus. Mr X went to the court and claimed indemnity for abusive termination of his labour contract.
The Court in DENDERMONDE admitted this claim by ruling that it was legally well-founded. By this judgement, the Court established as a matter of principle that HIV-infection (and I assume any other infection) is no acceptable ground for the termination of a labour contract, unless this termination is required by risks which go along with the job in question. Indemnity was allowed to Mr X for this reason. Furthermore, the court ruled that submitting someone to a HIV-test without informing him was against medical professional rules. For the latter reason, Mr X was given an additional indemnity.
However, the debate about hiring (or not) HIV-infected persons has not ended so far. Comments which followed the aforementioned ruling show a deep division between those who advocate the non-discrimination of HIV-infected persons and Aids patients on the labour market on the one hand and those who would like to see them excluded from some “sensitive” areas like surgery. The latter opinion seem to suggest that when the risk of infection for other persons is particularly high, the HIV-infected person should be refused or excluded from the job in question. That of course supposes that the candidate employee has freely accepted to submit himself to a HIV-test.