Activists protest El Salvador's workplace AIDS-testing
Rights advocates are set to challenge the new law in the nation's high court.
SAN SALVADOR — AIDS victims and advocates in El Salvador are aiming to overturn a controversial article of a new AIDS law that allows employers to test current and prospective employees for HIV. Presented by its supporters as a means of improving workplace safety, people diagnosed as HIV positive say it has opened the door to systematic discrimination.
Activists are preparing to challenge the law in the nation's highest court. They argue that compulsory AIDS testing is a violation of privacy, and that it legalizes discrimination - based on hatred or ignorance - of the estimated 20,000 Salvadorans thought to carry the virus.
Although the law prohibits discrimination on the basis of test findings, critics say it could mean the loss of work opportunities.
"The employer is not going to say he is firing someone because they are HIV positive, because they could be denounced legally for that," says Lícida Bautista, director of El Salvador's office of the nongovernmental Aids Action for Central America.
"They are going to say it's for another reason, give that person all the severance they are entitled to, and nobody will be able to challenge it," Bautista says. "Nor is the employer going to tell someone they weren't selected for a job because they are HIV positive. They simply will not select that person."
For Alex Gutierrez, an unemployed Salvadoran, the new law heralds a dismal future as far as work goes.
"When I heard about the law on television, I was really disappointed.... I had thought maybe I'd get lucky and find work, but now with this, I just don't see much of a future for myself."
Mr. Gutierrez lost his job as an assistant accountant last year when his employers said they were cutting back.
But the firing came after a health exam, including a blood test, that could have revealed his illness. Although he can't prove it, he firmly believes he was fired because the of the test results.
AIDS advocates say there are misplaced fears about how the disease is spread. Experts say that the chances of contracting AIDS in the workplace are remote. The International Labor Organization code of practice for AIDS and HIV explicitly recommends against pre-employment and workplace testing.
The ILO isn't aware of any other country where this controversial practice is permitted by law.
The new provision legalizing AIDS testing is part of a wider package of legislation passed late last year. Widely considered to be much needed and long overdue, the package was drafted with the help of a broad-based alliance of governmental and nongovernmental groups. The wider legislation includes many provisions that guarantee rights to those with HIV, which activists applaud.
But as the draft law passed through Congress, a provision recommending against workplace AIDS testing was changed to the current one legalizing it.
The change was made by Norman Quijano, of the ruling ARENA party, which has the backing of the business community.
"I am a congressman who has to defend the rights of all Salvadorans, not just those who are HIV positive," says Mr. Quijano.
The testing provision was intended to be used only for positions involving high risk of HIV exposure, says Mr. Quijano, adding that he can't be held responsible for employers' ignorance about the virus.
He also says the law states clearly that employers can't fire people because they are HIV positive.
While activists are largely happy with the new set of laws, they say the article legalizing workplace testing could convert what was once sporadic testing into systematic discrimination in the workplace.
Gladis de Bonilla, director of the health ministry's national AIDS program says the inclusion of this article was unfortunate, and that instead of being used to protect employees with AIDs it could be used to discriminate.
Ms. Bonilla says her office plans to draft the law's accompanying regulations in a way that minimizes the risk that the article be used as a license for discrimination.
Nonetheless, she says there are other ways to prevent discrimination in a nation where she says many people have little understanding about how the virus can be acquired.
"The biggest objective should be to raise awareness among employees and not let everything depend on changing an article," she says. "We can change the article but that won't change people's attitudes"
AIDS activists, however, say the only way to ensure that there is no workplace discrimination is to repeal the controversial article. Soon, they plan to file a series of cases before the nation's highest court and begin to lobby Congress to reconsider the article - something Representative Quijano says is open for discussion.
Gutierrez says that unless the article is repealed, he doesn't believe he'll be able to find a job in a nation with swelling ranks of unemployed who do not carry the disease.
"My dream would be that I would find an employer who would say 'don't worry, I know what you have, no one will know and you can still work here.' But that is my dream, the reality here is different."