WHAT HAPPENED TO TOBY?
When Toby commenced treatment for hepatitis C he decided to confide in his supervisor so he had some support at work if he needed it. Toby had believed that as a valued employee of a large multinational building and construction company for 25 years he would be given support, if needed, from his employer. As soon as he told his employer he had hep C, he was placed off work without pay. They suggested he approach Centrelink to apply for sickness benefits, which he did, but of course as he was not sick, he was not eligible.
Toby contacted the HIV/AIDS Legal Centre (HALC) for help as he had limited savings and no income. Not only had he been stigmatised and discriminated against, he was left feeling he had done something wrong. Toby’s lawyer lodged an urgent complaint with the Anti-Discrimination Board. This action was enough to make Toby’s employers act within the week, putting him on paid special leave and providing back pay for most of the time that he had been on forced leave. A month later, Toby was returned to work on restricted duties with a requirement that he attend appointments from time to time with a doctor appointed by his employer.
In the meantime, Toby’s lawyer continued with the complaint with the Anti-Discrimination Board on the basis of the pain and suffering caused to Toby due to his employer’s actions. The matter was not finalised there, so his lawyer took it to the NSW Civil and Administrative Tribunal. It is important that although decisions of the Tribunal are made public for anyone to read, the Tribunal agreed that Toby’s name and personal details should not be published to protect him from the stigma and discrimination that people living with hep C face.
Unfortunately, the Tribunal decided that Toby wasn’t eligible for financial compensation. It thought that although some of his employer’s actions appeared to be discriminatory, the main reason they had behaved as they did was to maintain Workplace Health and Safety requirements.
Toby is still working for the company but even though he has now finished treatment and cleared the virus, he has still not been returned to his former duties. On the upside, he recently took long service leave and had a fabulous overseas holiday to celebrate clearing the virus. He is planning his upcoming retirement on full superannuation and benefits.
The Australian Government has extensive information about living with hep C and your rights on web – Google “Department of Health Hep C Discrimination” if you’d like to read more.
Here are some answers to common questions about working with HEP C.
DO I HAVE TO TELL MY EMPLOYER I AM LIVING WITH HEP C?There are a small number of circumstances where you have to disclose your hep C status. If you are a member of the Australian Defence Force you must disclose your status and may be required to leave work. If you are a health care worker and conduct exposure prone procedures you may be required to disclose your status, the regulations vary depending on where you live.
Pre-employment medical tests should only be used to make sure you can carry out the essential requirements of the job, and only once you have been formally offered the job. They cannot test for blood borne viruses without your consent.
Any information that you give your employer about your health must be kept private. Your Human Resources section (if you have one) holds your personal information and staff are trained in the importance of keeping your details confidential.
CAN I BE TREATED DIFFERENTLY BECAUSE I AM LIVING WITH HEP C?
All people have a right not to be discriminated against in public life. Someone living with hepatitis C can’t be refused employment on the basis of their hepatitis C. Discrimination does not have to be intentional or obvious, and often results from beliefs and attitudes people may not even be aware they have.
You have the right to not be discriminated against on the basis of your hepatitis C. You are protected by the federal Disability Discrimination Act 1992 and the New South Wales Anti-Discrimination Act 1977.
Federal law says that discrimination occurs when you are treated differently because you have hep C or someone thinks that you do or you are expected to do things that you find difficult because you are living with the virus.
If you are discriminated against at work you may be able to make a complaint to the Australian Human Rights Commission, the Anti-Discrimination Board or the Fair Work Commission. There are pros and cons in commencing proceedings in each of these different forums so get some legal advice.
If you are discriminated against it is important that you seek legal advice right away. You may be barred from making a complaint if you wait too long.
HOW CAN I GET LEGAL ADVICE?
If you have been discriminated against because of HIV or Hep C you ask the HIV/AIDS Legal Centre for advice. Ring them on 02 9206 2060 or check out their website at www.halc.org.au
SHOULD I TELL WORK I AM LIVING WITH HEP C?
PROS
If you are experiencing symptoms from living with hep C or if you experience side effects from your treatment, you might need extra time off to cope. You might also need time off work to attend appointments with your doctor or specialist before and during treatment. Because hepatitis C is considered a disability according to federal law, your employer is obliged to support you in coping with your hep C so you can carry out your job. The only way an employer can get out of this, is if the support would cause them “unjustifiable hardship” - for example if it would cost too much. But they can’t help you if they don’t know.
If you have been having a lot of sick days, your employer may want to know why. It may be better if they know what is going on than make assumptions. You never know, they might surprise you. Some employers are really supportive, particularly if you want to seek treatment. They know they will get a better worker in the end.
Similarly, your colleagues may deserve to know what is going on with you, particularly if they have been picking up the slack for you. If you ask for their help and explain about hep C, they may be supportive rather than resentful, making your health journey a lot easier.
CONS
There are many cases in which people with hepatitis C have been discriminated against in the workplace. This often comes from a lack of understanding about the virus, so if you do tell your employer, make sure you explain that hepatitis C is not transmitted by ordinary, day to day contact.
Being treated as “diseased” can really hurt and can result in damaging your reputation if you work in an area where misunderstanding about hep C can affect the way you are directed to do your job, such as in the food industry or working with children. While we are protected by legislation, it can be a lengthy and distressing process to pursue this - during which your life may be disrupted. Even if you have your work duties restored to you, the stigma can remain and be very distressing.
In addition, research shows us that discrimination against people living with hep C is often fuelled by an assumption that anyone with hep C is an injecting drug user - and we know what that discrimination feels like. You may be watched more closely. Even if you are not using, assumptions may be made every time you nod off in a meeting in a too-hot room or are too long in the toilet.
In addition, although your manager and the Human Resources team must keep this sort of information confidential, people are only human and gossip happens. In addition, even though you may clear the virus through treatment, this information will stay on your personnel file.
WHAT IF I CUT MYSELF AT WORK?
You don’t have to blurt out that you have hep C if you get cut at work. Workplace Health and Safety laws state that employers must provide easy access to first aid materials and must treat all blood spills in the workplace as if there is an infection present. This includes using gloves to treat cuts and abrasions; all first aid kits should include several pairs of disposable gloves. If you don’t think your workplace has provided the equipment or training to make sure this happens, you should raise it with your boss, your workplace safety officer or your union representative.
If they know you have hep C, they can’t refuse to treat you if you injure yourself at work - for example if you are bleeding. Neither can they put in place unnecessary infection control procedures.