Infectious diseases discrimination

 

    What does the law say about infectious diseases discrimination?

    It is generally against the law in NSW to treat you unfairly or harass you because of an infectious disease, for example tuberculosis or hepatitis A, B or C. This also applies if you are HIV positive or have AIDS.

    It is against the law to discriminate against you or harass you if any of the following are the case:

    • you have an infectious disease now, even if you have no symptoms; someone thinks you have an infectious disease, even if you don't;
    • you had an infectious disease in the past, or someone thinks you had one in the past;
    • someone thinks you might get an infectious disease in the future; or
    • you have a relative, friend, associate or work colleague who has (or someone thinks has) an infectious disease.

    Indirect discrimination

    Indirect infectious diseases discrimination is also against the law. This occurs when there is a rule or requirement that disadvantages people who have an infectious disease more than people who don't have an infectious disease - unless it can be shown that the rule or requirement is 'reasonable in all the circumstances'.

    For example, a requirement for all staff to take breaks at a particular time might indirectly discriminate against a person who needs to take medication at other times of the day. It may be quite possible to organise that person's work so they could take their breaks when they need to.

    When does this law apply?

    Discrimination is against the law in the following areas:

    • in most types of employment - when you apply for a job or for a licence or registration to do a job, when you are at work, or when you leave a job;
    • when you get or try to get most types of goods or services - for example, from shops, banks, lawyers, government departments, police, public transport, local councils, doctors, hospitals and other medical services, hotels, sporting venues and entertainment venues;
    • when you apply to get into or study in any State education institution, which includes any government school, college or university;
    • when you rent accommodation such as houses, units, hotel or motel rooms and commercial premises; and
    • when you try to enter or join a registered club, or when you get services from one. A registered club is a club that sells alcohol or has gambling machines.

    Special facilities

    If you can do the essential parts of your job, employers must also provide any special facilities you need to do your job - unless it would cause them 'unjustifiable hardship' to do so. For example, you might need to have your breaks at particular times to take medication as previously, or work partly from home.

    Similar rules apply to educational institutions, accommodation providers and registered clubs. In deciding whether providing you with what you need would cause unjustifiable hardship, the organisation involved must consider the benefits of the proposed facilities to their other staff and clients, as well as to you.

    More information on unjustifiable hardship

    Infectious diseases and privacy laws

    If an employer, workmate or service, accommodation or education provider tells anyone else about your infectious disease when you haven't said they can, this could lead to discrimination that is against the law. It may also be against privacy laws. For more information on privacy laws contact Privacy NSW on (02) 9229 8585, or refer to Information and Privacy Commission​ website.

    However, some infectious diseases are classified as 'notifiable'. This means that a health care practitioner may have to notify a Public Health Unit about your infectious disease. For more information, contact your local Public Health Unit.

    Public health and safety exceptions

    An employer or service provider is allowed to discriminate against you if another law tells them that they must. For example:

    • They may have to discriminate against you because of public health or occupational health and safety laws. For example, you are not allowed to handle food when you are in the acute stage of many infectious diseases such as hepatitis A, and you may not be able to do certain specialised medical work if you have hepatitis C. For more information, contact your local Public Health Unit.
    • If there is an outbreak of an infectious disease (such as whooping cough or measles) in a day care centre, pre-school, or primary school, the organisation's director or principal can be instructed by the Public Health Unit to exclude a child who is not immunised until the outbreak is over.

    However, there are only rare occasions when health and safety obligations mean that someone can discriminate against you because you have an infectious disease. This means that it is generally against the law to:

    • refuse to hire you or provide you with a service, accommodation or education;
    • make you have a blood test;
    • segregate you from other staff or clients;
    • dismiss you from your job; breach your confidentiality or privacy on the grounds that others have the right to know about your disease;
    • treat you unfairly because they think you use drugs or you are gay, and therefore assume that you have an infectious disease.

    HIV/AIDS vilification

    HIV/AIDS vilification is also against the anti-discrimination law. Vilification is defined as any public act that could encourage hatred, serious contempt, or severe ridicule towards people who have HIV/AIDS.

    Public acts could include remarks in a newspaper or journal, in other publications, on radio or television or on the internet, including social networking sites. They could also include graffiti, posters, verbal abuse, speeches or statements, gestures and badges or clothing with slogans on them, as long as these are displayed, made or worn in public. The vilification law does not cover acts that are not public, for example abuse over a back fence that no-one else can hear.

    If the vilification involves a threat of physical harm or inciting others to threaten physical harm, it may be referred to the Attorney General and prosecuted as a crime of serious vilification. You generally have 12 months after the events occurred to lodge a discrimination complaint, but in this case the prosecution must commence within six months from the date when the vilification occurred.

    More information on vilification and serious vilification

    Homosexual and carer's responsibilities discrimination

    If you are HIV positive or have AIDS and someone treats you unfairly or harasses you because you are homosexual or they think you are homosexual, this could be against the law. It could also be against the law if you are treated unfairly or harassed at work because you are caring for or supporting a child or family member with an infectious disease.

    More about homosexual discrimination

    More about carer's responsibilities discrimination