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Response to work place incidents related to AIDS - OPD 900-1

Canada Labour Code, Part II - OPDs

No.: 900-1
Date: 31-05-89

1. Purpose

The purpose of this directive is to provide guidelines in the event a Health and Safety Officer is required to respond to work place incidents related to AIDS.

2. Scope

This directive applies to all officials of Labour Canada in the regions and headquarters with respect to work place incidents related to AIDS.

3. Background

Even though to date there has been no known instance of an employee contracting AIDS in the Canadian work place, there surely will be instances where Labour Canada will be asked to intervene in such matters. It is therefore appropriate to clarify Labour Canada's responsibility in responding to these interventions.

Essentially, the problem of AIDS in the work place is one of education of employers and employees. The Health and Safety Officer should review working methods to see whether there may be a risk of employees or the public coming into contact with infected body fluids. Programs must be developed in those workplaces at which there may be a risk of infection for employee protection.

Note well that blood and blood products are now screened for health care use. The risk of transmission by this means is now almost non-existent.

Several studies of health care workers in Canada and the U.S. have shown that careless hygiene and improper handling of infected materials and equipment are the only modes of transmission among health care workers. In those few individuals, the mode of transmission was through accidental needle pricks with infected agents. In addition, these same health care workers form part of the following high risk activity groups which include: homosexuality/bisexuality, prostitution (both male and female), and intravenous drug abuse. Other risk groups include recipients of certain infected blood products (patients), heterosexual (male and female) people in intimate contact with a person at risk, and infants of at-risk-parents.

Being in the same office, at the same desk, on the same assembly line or sharing instruments or equipment with someone with AIDS even for long periods (years) does not put one at risk of AIDS.

M.D.'s, R.N.'s, Lab Technicians and emergency personnel such as fire, police and ambulance attendants, who, through an injury in the work place, have been exposed to blood or body fluids may want to take a voluntary test to assure themselves that they have not contracted the virus. This involves informed consent, pre and post test counselling and confidentiality (anonymity).

Through Health and Welfare Canada, surveillance of individuals so exposed is available.

4. Authority

This directive is issued under the authority of the Assistant Deputy Minister, Operations.

5. Definitions

In this directive,

5.1 "Labour Affairs Officer" includes a Health and Safety Officer, a Appeals Officer, and a Labour Standards Officer.

5.2 "AIDS" means Acquired Immune Deficiency Syndrome caused by a virus known as Human Immunodeficiency Virus (HIV).

6. Guiding Principles

Part II of the Canada Labour Code contains an explicit purpose clause to explain the intent of the provisions contained therein. The purpose is stated in subsection 122.1;

"To prevent accidents and injury to health arising out of, linked with or occurring in the course of employment to which this part applies".

6.1 Initial Preparation

Although the AIDS picture is becoming increasingly clear in terms of how the virus is spread, employees and employers continue to be concerned about the precautionary measures that are needed to protect themselves in work place. The following points are provided to inform the Health and Safety Officer of the facts concerning the nature of AIDS and its transmission;

  1. AIDS is a disease caused by a virus;
  2. the disease can be transmitted only through sexual contact with an AIDS virus carrier, by injection of contaminated hypodermic needles, or from an infected mother to her unborn child;
  3. the virus has never been known to be spread by ordinary human contact, toilet seats, sneezing, shaking hands, etc.;
  4. since blood and blood products are screened for health care use, the risk of transmission by this means is now almost non existent;
  5. local authorities, relying on guidelines issued by the American Centre for Disease Control, have concluded that AIDS cannot be transmitted through casual work place contact;
  6. employees whose work involves contact with AIDS patients (e.g. health care employees or penitentiary guards), must ensure prescribed procedures are followed for their protection (e.g. protective clothing, etc.).

6.2 "Refusal to Work if Danger" Reports

6.2.1 In cases where the "refusal" involves an employee refusing to work with or near another person who is suspected of having AIDS, the Labour Affairs Officer shall proceed with the procedures outlined in OPD 905-1 (response to a refusal to work in case of danger - Canada Labour Code - Part II).

6.3 Unjust Dismissal Complaints

6.3.1 The Canadian Human Rights Act and the Canadian Charter of Rights and Freedoms prohibit discrimination on the grounds of "disability". AIDS is considered to be a disability. Consequently, adverse employment decisions such as dismissal, demotion, suspension or discipline would be actionable under the foregoing legislation.

6.3.2 Prior to an investigation of an unjust dismissal complaint where AIDS is alleged to have been the reason or one of the reasons for dismissal, the Labour Affairs Officer reviews the points in section 6.1 of this OPD for background information.

6.3.3 The Labour Affairs Officer follows the procedures set out in OPD 815-1, Response to Complaints of Unjust Dismissal. More particularly, should the LAO determine that AIDS is the alleged reason or one of the alleged reasons for the complainant's dismissal, the LAO should treat the complaint as he/she would treat any complaint where a ground of discrimination may be a reason for employment termination and refer the complainant to the Canadian Human Rights Commission in accordance with the terms of the memorandum of understanding between Labour Canada and the CHRC found in Part 7.1 b. (ix) of OPD 815-1.

6.3.4 During the Labour Affairs Officer's review of the employer's reasons for the dismissal, it may be evident that the decision was made on lack of awareness/education. In such cases, he/she may:

  1. Advise the employer that provisions contained in the Canadian Human Rights Act and the Canadian Charter of Rights and Freedoms prohibit discrimination on the grounds of "disability" and that AIDS falls within the definition of "disability".
  2. Ensure the employer is aware of the facts concerning the AIDS virus and that recent legal decisions have ruled that employees with AIDS should not be restricted from the work place simply because they are infected.
  3. Advise the employer that further information may be obtained from the National AIDS Centre, 613-957-1772 or 1774.

7. Procedures

If it is clear that the employee is at risk from exposure to AIDS contaminated materials, the Health and Safety Officer requests information from the employer/safety and health committee concerning preventive programs which have been established at that workplace.

The Health and Safety Officer makes an assessment as to whether the preventive programs (if any), are adequate (using expert medical advice if necessary).

The Health and Safety Officer advises the employer of his/her responsibilities under the Code to ensure a safe and healthy work place (section 124 and 125). The safety and health committee/representative should also be advised of the importance of their involvement in the design and implementation of preventive programs (such as infection control programs).

For those situations of danger where employees are at risk of infection, the Health and Safety Officer ensures that corrective action is taken and if not, a direction may be required (refer to OPD 700-5, Response to Non-Compliance with the Canada Labour Code, Part II).

8. Responsibilities

8.1 Regional Operations shall be responsible for evaluating, periodically reviewing and where necessary, amending this directive, and ensuring uniform application in all regions.

8.2 The Regional Directors shall be responsible for coordinating its implementation and ongoing application in their respective region.

H.P. Hansen
Assistant Deputy Minister/Sous-ministre adjoint
Operations/Opérations

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Date Modified:
2012-08-14