Sunday, December 28, 2014

Health check-up for work permit: HIV testing result is required?

In Vietnam’s practice, when guiding the foreign employee to have health check, the medical centers often require for the blood test and the HIV testing result is also shown on the health check certificate. That certificate is submitted to the provincial department of Labor, War Invalids and Social Affairs for work permit application. However, that practice does not comply with the laws of Vietnam.
Under the applicable laws, the HIV testing is conducted on the basis of voluntariness of the person to be tested and the compulsory HIV testing in the specific cases required by the laws. The employee has the right to refuse this test. The employer may not request a job applicant to have an HIV test or produce an HIV test result, or refuse to recruit a person on the ground that such person is infected with HIV, except for the case specified by this Law.
Moreover, it is prohibited to force HIV testing and the HIV-infected people have the right to have their privacy related to HIV/AIDS kept confidential. The Law on HIV/AIDS prevention and control No. 64/2006/QH11 dated 29 June 2006 (“Law on HIV/AIDS”) regulates that the HIV-infected people have the right to have their privacy related to HIV/AIDS kept confidential and it is prohibited to force HIV testing, except for the cases specified by this Law.
According to Article 27 and 28 of Law on HIV/AIDS, HIV testing shall only be conducted on the basis of voluntariness of persons to be tested and compulsory HIV testing shall be conducted in the specific cases (i.e. there is an official request for judicial appraisal or a decision of the investigative body, the people's procuratorate or the people's court; subject to the regulations issued the Minister of Health on compulsory HIV testing in certain necessary cases for diagnosis and treatment purposes; and under the list of occupations and professions requiring HIV testing before recruitment). Decree No. 108/2007/ND-CP of the Government dated 26 June 2007 implementing the Law on HIV/AIDS regulates that the list of occupations required for HIV testing prior to recruitment are: Flight crew members defined in Article 72 of the Vietnam Civil Aviation Law; and Special occupations in the security and defense domains.
Furthermore, the Circular No. 14/2013/TT-BYT of the Ministry of Health dated 06 May 2013 guiding the health check which is the most recent legal document about health check issuance and was promulgated pursuant to the law on medical examination and treatment, the Labor Code with the implementing decrees about work permit. This Circular regulates that in case where the person performed health check has a HIV-positive test; this test result must be informed as prescribed by Law on HIV/AIDS. However, under the form attached in this Circular, there is a part of history disease, it is required to fill the information about the infectious diseases, cardiovascular diseases, diabetes, tuberculosis, asthma, cancer, epilepsy, mental disorders, other diseases and if any, the employee must name out.
Thus, strictly speaking, it is somehow to violate the laws about the right of not disclosing HIV/AIDS. However, this Circular guides the regulations on health check not only for the purpose of job application but also for other purposes, so it is provided further obligation about information to cover all the cases and to comply with the Law on HIV/AIDS.
Based on the above, we have seen that the HIV testing is conducted on the basis of voluntariness of the person to be tested and the compulsory HIV testing in the specific cases required by the laws. The employee and applicant have the right to refuse and keep secret the HIV test but sometimes they do not know about that right. Moreover, in practice, some organizations and authorities do not comply with the law and disclose publicly that result.