e. Illness and HIV Status (DO 73, s. 2005; DA 05, s. 2010; RA 11166, Sec. 49)

Illness and HIV Status

Concept

Workplace discrimination based on HIV status is prohibited. The protection covers actual, perceived, and suspected status. A separate workplace safety and health provision requires prevention and control policies for HIV/AIDS, tuberculosis, and hepatitis; it does not, by itself, state an employment-discrimination rule for every illness. (Sec. 49, Rep. Act No. 11166)¹ (Sec. 12, Rep. Act No. 11058)²

Governing provisions

Section 49 of Republic Act No. 11166 prohibits rejection of a job application, termination, and discriminatory employment policies concerning hiring, benefits, promotion, or assignment solely or partially on the basis of actual, perceived, or suspected HIV status. Historically, Section 35 of Republic Act No. 8504 prohibited discrimination from pre-employment to post-employment and treated termination solely on that basis as unlawful; it is not the governing rule. (Sec. 49, Rep. Act No. 11166)¹ (Sec. 35, Rep. Act No. 8504)³

Requisites / Rules

• Identify the employment action: rejection, termination, or a discriminatory policy affecting hiring, employment benefits, promotion, or assignment. (Sec. 49, Rep. Act No. 11166)¹
• Determine whether actual, perceived, or suspected HIV status was a sole or partial basis for that action under Section 49. The provision does not require HIV status to be the only basis. (Sec. 49, Rep. Act No. 11166)¹
• Under the repealed Republic Act No. 8504, employers and other custodians of medical records were directed to strictly observe confidentiality when handling medical information, particularly a person’s identity and HIV status. (Sec. 30, Rep. Act No. 8504)⁴
• Covered workplaces must include HIV/AIDS, tuberculosis, and hepatitis prevention and control in their safety and health programs. The employer, contractor, or subcontractor prepares and executes the program in consultation with workers and their representatives. (Sec. 12, Rep. Act No. 11058)²

Distinctions

Historically, Section 35 addressed discrimination throughout employment and declared termination unlawful when HIV status was its sole basis. The governing Section 49 expressly reaches employment actions based either solely or partially on HIV status. Workplace prevention and control, in turn, concerns the safety and health program; it should not be confused with permission to make discriminatory employment decisions. (Sec. 35, Rep. Act No. 8504)³ (Sec. 49, Rep. Act No. 11166)¹ (Sec. 12, Rep. Act No. 11058)²

Key doctrines

In Corporation v. Pernito, the Court held that dismissal is illegal where the only reason offered for dismissing the employee is his HIV status. It affirmed the ruling declaring the employee illegally dismissed and the relief previously adjudicated. (Corporation v. Pernito, G.R. No. 256540, 14 February 2024)⁵

Exceptions

Historically, under Republic Act No. 8504, compulsory HIV testing was allowed only in the stated circumstances involving specified criminal charges, determination necessary to resolve relevant Family Code issues, or compliance with the cited organ donation and blood services laws. That repealed Act also identified limited situations in which medical confidentiality was not considered breached, including specified reporting, sharing with health workers involved in care subject to its conditions, and a court subpoena subject to its safeguards. These are not statements of the governing rules under Republic Act No. 11166. (Sec. 17, Rep. Act No. 8504)⁶ (Sec. 31, Rep. Act No. 8504)⁷

Bar tip

For an HIV-related employment problem, identify both the adverse action and whether HIV status was a sole or partial basis. Keep the discrimination issue distinct from workplace prevention duties and medical confidentiality; the cited confidentiality provision is historical. (Sec. 49, Rep. Act No. 11166)¹ (Sec. 12, Rep. Act No. 11058)² (Sec. 30, Rep. Act No. 8504)⁴