Positive workplaces and your right to safety
Modern workplaces have long been concerned with the safety and wellbeing of employees. But what does this mean when it comes to HIV? In this Spring Issue of Poslink+ Quarterly, Bethany Rodgers and Taylah Spirovski from the HIV/AIDS Legal Centre clarify your rights in the workplace. An HIV positive nurse, Bev, writes about her lived experiences; And Timothy Krulic covers the training, support and standards that keep peer work safe and effective. This issue also features the artwork of Emil Cañita, whose work explores living with HIV and the boundaries of art, sex work and personal expression.
Living with HIV in the workplace: What are your rights?
by Bethany Rodgers & Taylah Spirovski
People living with HIV often contact the HIV/AIDS Legal Centre (HALC) with employment-related concerns linked to their HIV status. They may have uncertainties about how to answer questions about health and medical conditions, whether they are legally required to disclose their HIV status, or if HIV precludes them from certain job opportunities.
Additionally, they may encounter distressing situations involving breaches of privacy and discrimination following disclosure of their status.
This explainer provides legal information on disclosure, privacy, and discrimination in the workplace for people living with HIV in Victoria. If your employment contract is governed by laws from another state or country (for example, freelance work), then refer to that jurisdiction’s employment laws.
Disclosure at Work
In Victoria, people generally don’t have to disclose their HIV status to an employer or prospective employer, even if asked, unless employed as a pilot or air traffic controller. There are very limited situations where employers may legally refuse to employ a person based on their HIV status. These are set out below. Generally, employers may refuse employment to a person living with HIV only if they cannot meet the job's ‘genuine and reasonable’ requirements, despite reasonable adjustments being provided. If an employer asks about your HIV status and you do not fall into an exception, they may be unlawfully requesting discriminatory information, and you have no legal obligation to disclose.
Additionally, if a person is dismissed from employment or has other adverse actions taken against them because of their HIV status, this may amount to unlawful discrimination under the Equal Opportunity Act 2010 (Vic), the Federal Disability Discrimination Act 1992 (Cth) and/or Fair Work Act 2009 (Cth).
Discrimination
The Equal Opportunity Act 2010 (Vic) prohibits discrimination against people living with disabilities, including HIV in employment. However, this legislation does not prohibit HIV vilification (that is the incitement of hatred or serious contempt of people living with HIV) like in other States such as New South Wales.
In employment and recruitment processes, discrimination can be direct, where a person is treated less favourably because of their HIV status, or indirect, where a policy that applies to everyone disproportionately impacts people with HIV and is unreasonable in the circumstances. Discriminatory treatment arising from assumptions that an individual is living with HIV—regardless of whether such assumptions are accurate— also constitutes discrimination. As does discrimination against individuals associated with or related to someone living with HIV is covered under the legislation.
Medicals and Employment
Your employer cannot seek medical information or require you to undergo a medical examination that is not relevant to the genuine requirements of the job. HALC often recommends that clients obtain a letter from their doctor confirming that their medication or condition will not impact job performance. Employers may only access medical examination results with the employee's consent, and any health information collected must be relevant to managing the employment relationship, such as managing sick leave or accommodating a disability. Health information must be kept confidential and generally only disclosed with the employee's permission.
Industry-Based Exceptions
Sex workers, defence force members, healthcare professionals, pilots and air traffic controllers who live with HIV have different and/or additional legal and occupational requirements applicable to them.
Sex Workers
Sex workers in Victoria are no longer required to undertake regular STI testing every three months. Instead, only the standard requirement under section 11 of the Public Health and Wellbeing Act 2008 (Vic) to take all reasonable precautions to prevent transmission applies. Reasonable precautions generally include using condoms, having a suppressed viral load on treatment, or confirming a sexual partner is taking pre-exposure prophylaxis (PrEP).
The Victorian Department of Health has published guidance for sex workers living with HIV.
The Australian Defence Force
People living with HIV are tested upon entry to the Australian Defence Force (ADF). They are no longer automatically deemed unsuitable for service, rather, they are assessed on a case-by-case basis. Those individuals living with HIV who are on treatment and have a suppressed viral load are eligible for most ADF roles.
Healthcare Professionals
While healthcare workers living with HIV are not required to disclose their status to the Australian Health Practitioner Regulation Agency (APHRA) or their employer, they must confirm compliance with Communicable Disease Network Australia (CDNA) Guidelines when renewing their registration.
Healthcare professionals are sometimes required to perform exposure-prone procedures (EPPs) that involve the confined body cavities of patients. All healthcare workers and students (HCWs) performing EPPs must adhere to the CDNA Guidelines, which includes testing for blood-borne viruses every three years and reporting sharps injuries.
To perform EPPs, HCWS living with HIV must maintain a viral load below 200 copies/mL and undergo quarterly viral load testing. Initial clearance to perform EPPs requires two tests at least three months apart. HCWS living with HIV who are not performing EPPs are still expected to remain under regular medical care.
Pilots and Air Traffic Controllers
The Civil Aviation Safety Authority (CASA) requires pilots and air traffic controllers with HIV, classified as a ‘medically significant condition’, to disclose their status to their Designated Aviation, Medical Examiner (DAME) and CASA. These individuals must undergo quarterly viral-load tests, half-yearly neurological assessments (and pathology tests if on ARTs) and annual cognitive function assessments.
Privacy, Confidentiality and Bullying
If an employee discloses your HIV status to another person without your consent, you may wish to get legal advice, as this may be a breach of your privacy. In these circumstances it is generally recommended that you first communicate with your employer or a designated support person who can advocate on your behalf. Employers have a responsibility to mitigate risks to employee health and safety, and reporting the incident may prompt necessary actions to address the issue. If this doesn’t work, legal recourse may include applying for a Personal Safety Intervention Order (PSIO) against the person who disclosed your status, especially if their behaviour was also demeaning, derogatory or intimidating. A PSIO can order the person to stop such behaviour or limit their communication with you. You can apply directly to the Magistrates Court of Victoria, but it’s advisable to first file a police complaint, as they are able to and may apply for a PSIO on your behalf. This course reduces the risk of you being liable to pay the other party’s legal costs if your application is unsuccessful.
Furthermore, employers are required to take reasonable measures to prevent workplace bullying related to an employee's HIV status. The anti-bullying provisions of the Fair Work Act 2009 (Cth) offers another means of recourse and complaint.
Migration: Employer Sponsored Visas
One of the requirements for visa applicants is that they meet specific health criteria: their healthcare and community service costs must be below $86,000 for the duration of the visa. People living with HIV who are applying for certain provisional or permanent employer-sponsored visas (sub-classes 186, 494, 191) will exceed this cost threshold and will therefore need to obtain a health waiver to get the visa. This situation raises important considerations regarding the disclosure of HIV status to the sponsoring employer or their migration agent.
The visa application process will include inquiries about your health, and the need for a health waiver may extend processing time. If you do not wish to disclose your status to your employer or their migration agent, please seek legal advice. You can manage the visa application independently or through your own migration agent or lawyer; however, this may lead to questions from the employer regarding any delays or your decision to forgo using the employer’s designated agent. If you do choose to disclose your status, it is essential to remember that discrimination based on HIV status is illegal.
It is crucial that you do not misrepresent your HIV status to Immigration, either yourself or through your Agent, as this could result in your visa being refused on character grounds.
People living with HIV have the right to a safe and respectful workplace, free from discrimination and stigma. Understanding your rights is an important part of effectively advocating for yourself and ensures that employers are held accountable.
If you or someone you know is facing challenges related to their HIV status in the workplace, it is important to seek support. Organisations like HALC can provide valuable legal advice, resources and guidance to help navigate these issues.
HALC and HWL Ebsworth Lawyers are currently collaborating on a comprehensive employment guide for both employees and employers to better understand the rights of those living with HIV in the workplace. Publication of this guide is forthcoming.
Remember, you are not alone, and reaching out for assistance from HALC or a peer support service like Living Positive Victoria can empower you to advocate for your rights and ensure you receive the supportive work environment that you deserve.
Positive in caring, empathy and HIV
by Bev, an HIV+ nurse
I’m often told I could ‘talk under water’ or ‘the legs off a table.’ But my HIV diagnosis in 2007 rendered me totally speechless, shocked and surprised. For ten years, it was a secret I didn’t share with anyone.
As a child I was brought up to be seen and not heard. Our family moved around NSW, Victoria and Tasmania, which made it difficult to make friends. I remember being extremely embarrassed to read aloud to the class at school and would easily blush until I joined the Scouting movement. Being a scout gave me the pathways to mature into a confident teenager (in year 12 I became school captain) and adult until I found my calling as a nurse.
My nursing career began in 1979 and for the first year, it was compulsory to live at the Nurse’s Home on the grounds of the hospital which was an adventure. We could see the neon Skipping Girl sign from our dormitory windows in the 3-storey building. Nursing training was tough having lived at home up until then. An introduction to shift work, uniforms, starched hats and nursing hierarchy (standing to attention during a meal if the matron walked into the dining room) were all part of the rigorous training. My compassion and drive to care for patients and their loved ones confirmed that I had made the right career choice. For the past 45 years, my work has included paediatrics, school camps, rehabilitation, orthopaedics, pathology, doctors’ practices, diabetes education, aged care and later, the COVID-19 response. Aged care is my niche. I have respect and empathy for the elderly and enjoy hearing about their life experiences and stories.
As a medical professional I was extremely naive about HIV, pathology norms, treatment and my legal obligations working as a nurse.
I was diagnosed with HIV following a holiday romance with a friend of 30 years down the east coast of Australia. My seroconversion was flu-like symptoms and a ghastly sore throat. A doctor I visited in Coolum did not ask about unprotected sex and prescribed antibiotics and symptomatic treatment. It was only following a blood donation that I was told they had found an anomaly. When I arrived at the blood bank I was taken to a room and seated, with me on one side of a table and two ladies on the other. I was totally speechless, shocked and surprised. As a medical professional I was extremely naive about HIV, pathology norms, treatment and my legal obligations working as a nurse. My mind raced overtime with worry and panic seared through me. Could I lose my job? Would anybody employ me if they knew my HIV status? I thought: work cannot find out and this must be my secret.
An urgent referral into specialist HIV services was required. I wanted to navigate out of my local healthcare network region and I was referred to a wonderful and understanding professor at the Alfred hospital. In addition to healthcare services, I was referred to the Department of Health and Ageing due to HIV being a communicable reportable disease, blood borne virus which poses a threat to public health. Interrogation by the public notification officers of any past sexual partners was not pleasant, and each had to be notified anonymously.
Now I was in a quandary about disclosing my status at work. Did I need to disclose for the safety of my patients? Around that time, I had a terrible experience at the dentist. On arrival I was asked to complete the new patient medical history. Do I have HIV? I was unaware of my legal option that I did not need to disclose my HIV status, and ticked yes. I proceeded to a treatment room, sat in the chair and my dental bib was ceremoniously placed. Ten minutes later the dentist arrived with my questionnaire, only to announce, ‘in fact we won't have time to see you today.’ I was escorted out of the chair and off the premises. Absolutely flabbergasted at how I was treated, I recoiled within and vowed never to be honest about my HIV status again. For ten years post diagnosis, I did not disclose to anyone, living in a world where I would scream only inside my head.
Like a sponge, I absorbed knowledge about living with HIV. My understanding of legal obligations as a healthcare provider improved as I sought further information from my treating professor and peak bodies. I learned that health practitioners living with HIV who perform exposure-prone procedures (like surgery in open wounds with exposure to patient’s tissue and blood) need only to abide by the Communicable Diseases Network Australia Guidelines. These guidelines include regular pathology and having an undetectable viral load.
I could not function; constant headaches, insomnia, permanent indigestion, inability to concentrate and day-to-day living was a challenge
The COVID-19 pandemic added a challenge to my nursing career when I was deployed from community health into drive through testing. I felt there was no regard for my HIV status (being immunocompromised) when we had little insight into any consequence of the virus. Finally, I was to coordinate a COVID-19 vaccination clinic. I was confronted daily by people’s emotions when they did not meet eligible criteria or their workplace required mandatory vaccination. I felt intimidated with a fire burning within me as I was sent to work at the coalface of the pandemic, with no regard for my personal health as managers worked from home. COVID-19 burnout struck as anxiety and depression tore through my body and mind. I could not function; constant headaches, insomnia, permanent indigestion, inability to concentrate and day-to-day living was a challenge until I retreated, left work and sought professional treatment. I continue to have regular appointments with my General Practitioner and Psychologist.
Overall, in most aspects of my career, I have enjoyed caring and listening to others with empathy and a genuine love of their wellbeing. I now advocate for others during their HIV journey by volunteering with Living Positive Victoria and held a board position with Positive Women Victoria for two years. I have been a member of the Positive Speakers Bureau, helping to educate the broader community, wrote and delivered a speech at the International AIDS Candlelight Memorial, delivered a body mapping of annual health issues with the Well Beyond 50 group, assisted in the facilitation of Phoenix workshops and proud to be able to share my recent qualification of counsellor and art therapist.
How do we know as medical professionals that any patient that walks through the door has HIV or any other blood borne virus? Do you know the HIV status of your health professionals? We don’t and nor should we need to. All patients no matter their medical history should be treated equally. I am now 64 years old, and I continue to live and age well with HIV.
Image: Bev at the gate of a Dandenong cottage, Digital photograph (2022)
Ever thought of doing peer work?
By Timothy Krulic
Being employed as a peer – whether it’s in a support, volunteer or leadership role – is one of the few instances in which your lived experience of HIV or another health condition is highly relevant to your day-to-day activities in the workplace.
Peer work offers the opportunity to help others and do work that aligns with our values and beliefs, but it can raise a unique set of challenges. It’s also becoming more common.
You may even consider peer work as a career or volunteer opportunity for yourself. If so, here’s what you need to know about peer work and what workplaces can do to keep it safe and effective.
What is peer work?
In the context of health promotion, peers are people who come from similar communities, backgrounds or lived experiences of health and wellbeing.
Peer work is when we use the insights we gain from community and shared experiences to inform education and public health responses or provide support to each other in the form of groups, workshops and one-on-one peer support, like peer navigation.
Peers have unique resources to offer each other and health systems. Often peer support can feel practical, intuitive and therapeutic all at once, which is why in the peer support team we sometimes (playfully, of course) call it “peer magic.” But it is important to note that Greater and Meaningful Involvement of People Living with HIV (GIPA/MIPA) principles are recognised globally as critical to meet contemporary goals to end the epidemic.
My own research, which investigated peer navigation for people living with HIV, showed that peers are well placed to support our social and psychological needs for belonging and reassurance and help people to overcome the consequences of HIV-related stigma on things like relationships, life goals and engagement with community and services.
The history of the community response to HIV in Australia means that we have whole organisations of people living with HIV, like Living Positive Victoria, where peer work is at the heart of everything we do. However, the peer approach has been applied in many other health services and systems.
In other sectors, such as mental health, disability or alcohol and other drugs, it is more common for a peer worker with lived experience of mental health challenges, disability or drug use to be working alongside specialist clinicians or allied health professionals.
Negotiating the hazards and rewards
The benefits that peers often describe about our work include the reward of seeing transformation in others and doing work that aligns with our core beliefs and values. Peers also speak about the sense of validation we feel when we are open and valued for who we are in the HIV response, especially if our journey to come to this place has been challenging. Finally, many of us love being part of a strong, diverse and inspirational community of people living with HIV.
Peer work is all about people sharing their stories and experiences. Sometimes, these are painful memories (or triggers), and the similar experiences of others can lead us to identify strongly with them. We must also think carefully about what we choose to share and how comfortable we are living openly with HIV. At other times, the dynamics of peer support, which are based in equality, reciprocity, and community, can make the boundaries between a peer, friend, community member, colleague, client or worker feel blurry.
Establishing strong boundaries and identifying and understanding the consequences of when your own thoughts and feelings become entangled with those of the person you’re helping are core skills for this kind of work. If not, it can lead to burnout or psychological injury.
Other risks for peer workers, particularly those working in mainstream services or alongside other healthcare and allied health professionals, are breaches of confidentiality, discrimination and the emergence of power imbalances between peers and nonpeers.
The importance of training, support and standards
There are now practice-based standards and guidelines to provide peer support, including the Australian HIV Peer Support Standards. These build on GIPA/MIPA principles, and provide recommendations for organisations to improve the accessibility, safety and effectiveness of peer support. Similar Guidelines for Lived Experience and Peer Workforce Development in mental health have recently been developed in Australia.
The Australian HIV Peer Support Standards recognise that peer support works best when it comes from people living with HIV who are trained and a part of the communities they support. Because peers are often recruited for their lived experience and community connection, rather than their formal qualifications or training, it is important that workplaces provide this training, support and development.
Training and ongoing development should cover frameworks for practice and working with diverse communities, such as counselling and communication skills, trauma sensitivity and cultural awareness. Peer should also have ongoing access to supervision to work on things like triggers and boundary issues.
My research found that when these standards—training, supervision and development of peers who reflected their community—were put into practice, peer navigators were able to effectively support people living with HIV with complex needs and lower access to community and support in Victoria. This included women, heterosexual men and new and temporary migrants of diverse gender and sexuality.
Our study also found that working in a peer-led environment, such as a community organisation of people living with HIV, created a community of practice that enabled peer navigators to improve and refine the quality of the support that they were able to provide. Peer navigators also benefited from a sense of acceptance and belonging within the workplace.
For nonpeer organisations implementing HIV peer navigation and support, international practice guidelines further recommend that training and development promotes the value and underlying principles of GIPA and MIPA to other people in the workplace and to support peer workers though partnerships with community structures.
If you’re thinking about volunteering or applying for a peer role, consider if the organisational culture aligns with the underlying principles of greater and meaningful involvement of people with lived experience, and make sure that you ask about what training, supervision, development and community of practice is available to you. Remember, volunteers have the same workplace rights to safety as people in paid roles. Where possible, training should meet professional standards, such as the HIV Peer Navigation Training provided by the National Association of People Living with HIV Australia.
This article summarises findings from research which investigated the implementation of Living Positive Victoria’s peer navigation program. You can find out more about the research outputs from the project here.
Krulic, T., Brown, G. & Bourne, A. (2022). ‘A scoping review of peer navigation programs for people Living with HIV: Form, function and effects.’ AIDS Behav 26, 4034–4054. https://doi.org/10.1007/s10461-022-03729-y
Krulic T, Brown G, Graham S, Hoy J and Bourne A (2023) ‘Revealing an enabling environment: How clinical community and clinical stakeholders understand peer navigation to improve quality of life for people living with HIV in Australia.’ Front. Public Health 11. https://doi.org/10.3389/fpubh.2023.1101722
Krulic, T., Brown, G., Graham, S., McCarthy, A., & Bourne, A. (2024). ‘Stepping out of secrecy: Heterosexuality, quality of life, and experiences of HIV peer navigation in Australia.’ Culture, Health & Sexuality, 26(10), 1285–1300. https://doi.org/10.1080/13691058.2024.2308667
Or soon to be published:
Krulic, T., Brown, G., Graham, S., Canita, E., Araya, C., Bourne, A. ‘Regaining control: Quality of life and the experiences of new and temporary migrants who participated in a peer navigation program for people living with HIV in Australia.’ Journal of the Association of Nurses in AIDS Care
Krulic, T., Brown, G., Graham, S., Bourne, A. Engage and adapt: ‘Peer-led implementation of HIV navigation in Australia.’ Sexual Health
Artist profile
Emil Cañita (he/she/they) is a trans Filipino sex worker, HIV Advocate and artist. Emil’s distinctive art practice involves the use of gloryholes as a creative medium. Within these intimate spaces, they document encounters with their subjects, capturing the rawness and vulnerability that can often be found in moments of sexual connection. Through video recordings, storytelling, and Polaroid snapshots, Emil invites viewers into a world that is often hidden or misunderstood, challenging preconceived notions and allowing for deeper engagement with their art. By sharing these intimate narratives, Emil confronts societal taboos, dismantles stereotypes, and encourages viewers to question their own perceptions of identity and desire. As Emil’s artistic journey continues to evolve, they remain a vital force in redefining the boundaries of art, sex work, and personal expression.
Have an idea for an interesting story? We want to hear it.
ISSN 1448-7764