This is a reply to a question asked by Mr. Gargan on March 4, 1992 on the Human Rights Code and obligations to reveal personal health status. There are three pieces of legislation related to human rights which are relevant in these circumstances. Two are federal and one is territorial.
The first is the Charter of Human Rights and Freedoms. This applies to all NWT legislation and GNWT policies. Reporting requirements for communicable diseases in public health legislation and employment policies and practices of. the GNWT must comply with the charter. Legislation and policy must attempt to balance private rights with the public interest. Examples of rights that may be violated include those rights protected by section 7, the right to life, liberty and security of the person; the right to privacy; and section 15, which prohibits discrimination based on disability.
The second is the federal Human Rights Act. This statute applies to the GNWT and the federal government in their capacity as employers and landlords. Among other things, it prohibits discrimination based on disability in employment and the provision of services, such as accommodation.
It is important to note that the effect of human rights legislation is to prohibit discrimination to all stages of the employment process, advertising the position, application forms, interviewing, hiring, promotion and dismissal, not just termination of employment.
Were the GNWT to require that health professionals indicate their HIV status, if known, on applications for licensing or employment in the NWT, or that health professionals disclose this information if they learn they are HIV positive after they are licensed or employed, it is probable that the courts and/or Canadian Human Rights Commission would find this to be discriminatory.
Based on the current medical knowledge of HIV transmission, the risk of HIV transmission from health care workers to patients is extremely rare where universal precautions are used. Consequently, it is doubtful that the courts would find the public interest to outbalance individual rights.