Miami Herlad - Tuesday, December 18, 2001
Frances Robles, frobles@herald.com

She gave up her job making and peddling quesadillas on the streets and applied at a clothing factory. Paz, 29, waited in line, turned in the application, then came to a halt. The position required a physical exam.

"I knew I couldn't give them a blood test. I knew I would fail," Paz said. "I knew I wasn't going to get the job."

In El Salvador, a new law intended to prevent the spread of AIDS and protect those living with it allows employers to test job candidates for HIV. Experts believe the law is unprecedented, and does the very opposite of what international labor standards recommend. Advocacy groups filed suit in late November to have it reversed.

Although it also bans discrimination against infected people, activists say all the benefits of a code they spent a year to help create vanished. They fear the regulation will instead ensure the estimated 30,000 HIV-positive Salvadorans won't work or have access to medical care.

PROTECTING WORKERS

Supporters say they included the provision to protect workers, saying employers have a right to guard their staffs against people with a deadly illness. The law does not allow employers to reject candidates based on the test results, defenders said.

Paz walked out of the clothing factory that day. She remains unemployed. "They're authorizing discrimination," Paz said. "Before, it was just optional."

The United Nations' International Labor Organization said they know of no other country with such a rule.

"On the contrary, there are many countries that say this kind of information is confidential," said Brigette Zug de Castillo, of the ILO's AIDS program in Geneva. "We know many places do the testing anyway -- hidden and illegally -- but to put it right there in the law? No way."

El Salvador was the last country in Central America to draft a law specifically addressing AIDS. The much-anticipated legislation was designed to protect patients' rights and guarantee treatment. It was considered a step forward for El Salvador, a nation of six million, where just over 7,500 people have been diagnosed.

COMMISSION CREATED

The law creates a federally funded AIDS commission, says children who have it must be educated, and everyone must be treated. It allows for shelters for orphaned children and abandoned adults.

It also makes it a crime to spread the virus, and compels those diagnosed to notify current, past and potential partners. The act even mandates motels that rent rooms by the hour to offer two condoms as part of the services. "It's a good law, there's just parts of it people don't like," said Gladys de Bonilla, head of the Health Ministry's AIDS program. "It's supposed to help prevent AIDS and offer treatment. You can't say it's a bad law."

But even Bonilla acknowledges that the Health Ministry, which wrote the law, submitted its draft to the national assembly without an employment testing provision. The controversial clause was added by the ruling ARENA Party, which also controls the Legislature.

Congressman Dr. Rafael Arévalo, a gynecologist who is a member of the health committee that added the clause on preemployment testing, stressed that it was necessary to control the spread of AIDS. He said employers should use the test results only to find the most appropriate job for HIV-positive employees -- like keeping them away from sharp objects.

"What happens if someone with AIDS gets cut in a kitchen or by a machine?" Arévalo said. "The spirit of this law is to protect the majority. It's possible that in giving people with AIDS so many rights, you unprotect the great majority. We decided to protect everyone."

AIDS activists suggest the right-wing ARENA Party changed the draft version to protect the business community, which would suffer lost productivity and higher costs if an employee got sick.

"Many congressmen are business owners," said Jorge Odir Miranda Cortez, director of Atlacatl Association, an advocacy group. "It's convenient for them to have this."

NOT UNPRECEDENTED

The law is not entirely unprecedented. The United States requires an AIDS test as a condition for immigration and for foreign service workers headed overseas. In some countries, prospective employees are submitted to AIDS tests without their knowledge.

The United Nations' AIDS commission is against such policies, and the International Labor Organization recently drafted international guidelines suggesting only voluntary and confidential testing.

Several countries particularly ravaged by the disease, notably in Africa, ban the practice.

"When we heard there was a new law to control HIV, we were excited:

We saw hope and access to hospital care," said Jaime Argueta, an HIV-positive, unemployed engineer.

"Then when I read it, I thought: `What is this for? It's not to give the person a better-suited job or make sure they get adequate insurance.' "

Argueta said the law will hurt more people than it helps.

"We are going to go back to the same: no job and no insurance," he said. "They're saying we are putting co-workers at risk. It seems absurd: AIDS is transmitted through sex, and we don't go to work to have sex."

University of Miami international labor ethicist Kenneth Goodman agreed.

OTHER CONCERNS

"You are much more likely to be kidnapped by aliens than to get AIDS from someone at work -- depending on what you're doing with your co-workers," Goodman said. "What about workplace safety in maquiladoras? Farm workers exposed to pesticides? If they are really concerned with workplace health issues, there are a lot better places to start."

Congressman Arévalo said criticisms are unjustified, because the same law that allows for AIDS testing says employers cannot deny someone a job if they test positive. Anyone turned down for a job can sue, he stressed.

"There could be a businessman who denies someone a job, but we tried to compensate for that," he said. "This isn't the United States where they say, `Sure, Magic Johnson can play all the basketball he wants.'

"You know the minute he's bleeding, they take him out of the game."

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