HIV and AIDS (Anti-Discrimination) Law and Mandatory Policy

The HIV and AIDS (Anti-Discrimination) Act, 2014 (“the HIV and AIDS Act”) makes provisions for the prevention and the protection of the Human Rights of people living with or infected with the HIV virus, from any form or manner of discrimination and stigmatisation especially in the workplace, in communities, institutions’ and in other fields of human endeavour.

Employers, Communities, Individuals and Institutions’ are accordingly required by the HIV and AIDS Act to ensure that they have a HIV and AIDS Policy which adheres to the non-discrimination and non-stigmatisation provisions in the HIV and AIDS Act, and in the National HIV and AIDS Workplace Policy. This is especially as it is a criminal offence to discriminate against any person living with or perceived to be living with HIV or AIDS.

No employer, individual, institution or body is allowed to require from any person other than strictly between a married couple, the conduct of a HIV or AIDS medical or health test; or to require such a person to disclose his or her HIV or AIDS status; or the status of anybody else whether or not related to the concerned person.

Also, the real or perceived HIV or AIDS status of any person shall not be the basis for the termination of such a person’s contract of employment. And where a person is infected with HIV or AIDS in the course of their employment, such infected employee shall be entitled to claim compensation from their employer.

The confidentiality of the health and medical records of any person living with HIV or affected by AIDS must be protected at all times. The fine and term of imprisonment for any breach of this confidentiality provision, on conviction, is not less than N500,000 (Five Hundred Thousand Naira) in the case of any individual, and N1,000,000 (One Million Naira) in the case of a corporate body. The term of imprisonment is not to however exceed two (2) years.

Every Employer is statutorily required to ensure that the Fundamental Human Rights of its employees, especially its employees living with or infected with HIV or AIDS, are always protected. Where any of these rights, to confidentiality, dignity, non-discrimination, non-stigmatisation, etc are breached, the remedies available to such an Employee are required to be integrated in the Employer’s Workplace Grievances Procedures.

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Employers who have five (5) or more employees are required to within twelve (12) calendar months of the employer commencing business, in consultation with its employees’, design and adopt a written Workplace Policy that is consistent with the National HIV and AIDS Workplace Policy.

Every adopted Employer and Employee HIV and AIDS Workplace Policy is in turn required to be submitted to the Minister of Labour and Productivity for his or her approval. The penalty for failure to adopt such a HIV/AIDS Workplace Policy is a fine, which on conviction attracts a penalty of N250,000 (Two Hundred and Fifty Thousand Naira) for the first year of default and N100,000 for each subsequent year that the default continues.

Failure to lodge the adopted HIV and AIDS Workplace Policy with the Minister of Labour and Productivity for approval attracts on conviction a further fine of N10,000 for everyday that such a default continues to persist.

The contravention of any of the provisions in the HIV and AIDS Act, for which an express penalty is not provided for in the HIV and AIDS Act, will on conviction attract a fine of not less than N500,000 for individuals and N2,000,000 for corporate organisations. The term of imprisonment, on conviction, is for a period of not less than One (1) year, or to both the fine and the term of imprisonment.

The Federal Minister of Justice has the authority to conduct a HIV/AIDS Compliance Enquiry regarding the provisions of the HIV and AIDS Act. And where any contravention is revealed from such an enquiry, the said Minister can make recommendations to the defaulting party for corrective measures to be undertaken before criminal proceedings are initiated in a competent Court of Law.

Individuals and groups also have a right to seek civil remedies and compensation from the Courts provided a prior communication of such a legal action is forwarded to the Minister of Justice.

Stigmatisation and Discrimination against people living with HIV or AIDS is still very prevalent especially among religious institutions’ and hirers of domestic staff. Some religious institutions are still compelling couples intending to get married to undergo mandatory HIV and AIDS tests before they can be married in such religious institutions

HIV and AIDS education, prevention and care should primarily be a matter for the Government and not for private institutions who are already over-burden with a challenging business environment and multiple taxes. Some amendments to the HIV and AIDS Act compelling governments to take a greater implementation lead in HIV and AIDS prevention, protection and care are therefore necessary.