Former intern gets job after rejection over HIV test result

A man in Neijiang, Sichuan province, got a job, along with compensation, after he sued a local cultural creativity company for not hiring him after he was found to be HIV positive.

The man’s name is being withheld to protect his privacy. His lawyer, Xu Quan, gave the following version of events:

The man started working for the company as an intern in April 2017 and scored highest on a test given to all the candidates applying for a regular job. A month later, the company’s personnel department notified him that he would become a regular employee soon.

But a physical examination arranged by the company at Neijiang No 6 People’s Hospital found that he was HIV positive. He repeated the physical exam and the result was the same.

In June, a company official told him to go home because of his HIV status.

The man repeatedly asked the company to sign an employment contract with him, but the company declined. Still, it allowed him to continue his internship by working at home. After paying him 3,000 yuan ($470) in wages on July 27, it sent no more assignments.

Desperate for work, the man surfed the internet and found the HIV test was voluntary under the law and was not required for employment.

Feeling victimized by unlawful discrimination, he took the case to Neijiang Intermediate People’s Court seeking double pay for the period in which the company did not sign the work contract with him and asking the company to sign an open-term work contract.

On Jan 25, the court heard the case. As both the plaintiff and defendant agreed to mediation, they met on April 28, attorney Xu said.

The result of the mediation was that the man would sign a two-year work contract Zhao Jintao, starting from April 1, and the company would pay double for the period during which it had refused to sign a contract — from April last year to the end of March this year — Xu said.

According to Zhao Jintao, a lawyer in Beijing, the man’s case will help reduce discrimination in employment.

“There is no law or regulation requiring a health checkup before employment, but such health checkups are not banned, either,” he said.

In practice, arranging health checkups for new employees is thought to be “reasonable” because some health conditions, such as mental illness, will prevent employees from completing their work, he added.

According to laws and regulations, people with infectious intestinal diseases, such as dysentery and typhoid, or with certain types of skin diseases, cannot work in the food processing businesses. They are also forbidden to serve customers directly in public places such as hotels, restaurants and public baths.

Zhao added that it is illegal for employers to ask new employees to check for HIV or hepatitis B.

“This case will make more companies understand that they should not include tests for HIV in the company’s health checkups for new employees,” he said.

There is no law or regulation requiring a health checkup before employment, but such health checkups are not banned, either.” lawyer