Dismissing an HIV-positive kitchen worker

Are health concerns a legitimate reason?
By Stuart Rudner
|Canadian Employment Law Today|Last Updated: 10/07/2009

Question: Our restaurant discovered one of the kitchen staff is HIV positive. How do we balance the privacy rights of the employee with health and safety standards? Is HIV a legitimate safety reason to remove him from the kitchen or let him go?

Answer: It is unlikely a restaurant can use safety concerns to justify dismissing an HIV-positive kitchen employee. A person suffering from HIV is under a “disability” within the meaning of human rights legislation and, therefore, employers cannot discriminate against HIV-positive employees. Once a prima facie case of discrimination is established, an employer must prove that although discrimination has occurred, it was based on a bona fide and reasonable occupational requirement (BFOR). To establish a BFOR, an employer must establish three requirements that were outlined in British Columbia (Public Service Employee Relations Commission) v. BCGSEU (the Meiorin decision):