3. If an employee has an infectious disease or AIDS, can the employer dismiss that person?

3. If an employee has an infectious disease or AIDS, can the employer dismiss that person?

It may be lawful to discriminate against (including dismiss) an employee who has an infectious disease, if it is reasonably necessary for the protection of public health (i.e. to prevent the spreading of such disease to other colleagues or customers). However, it is generally NOT acceptable to dismiss a person or discriminate against them on this basis unless the job is such that there is a risk of spreading the disease through physical or bodily contact.

Under the DDO, infectious diseases are the diseases set out in Schedule 1 of the Prevention and Control of Disease Ordinance (e.g. tuberculosis and viral hepatitis) and any communicable disease specified by the Director of Health in the Government Gazette.

According to section 61 of the DDO, however , neither HIV infection nor AIDS is to be treated as an infectious disease. In that case, it may be unlawful to discriminate against an employee with AIDS.

Employers should also note that many infectious diseases can be cured after proper treatment. Therefore, the granting of sick leave is always an alternative to immediate dismissal.

Before dismissing an employee with an infectious disease, the employer must comply with the provisions of the Employment Ordinance (please refer to another topic – Employment Disputes) and should consult a lawyer if necessary.