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Man with HIV awarded damages after being denied hospital job

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A hospital of all places should know the risks that involved, and it's not like the guy was a surgeon!

I am glad they are being forced to pay this guy, they made a choice to stay ignorant!

2 ( +10 / -8 )

1.65 million yen is a paltry sum and will not serve as a deterrent to discrimination. Japan, yet again, lags the developed world.

2 ( +9 / -7 )

But the hospital withdrew the job offer in January last year once learning of his infection from medical records.

I am a bit confused here on this, every single job I have ever had here in Japan had a requirement for me to take a physical, prior to being accepted for the positions.

I am REALLY curious to know what the motivation for "checking" his medical records was about here, as they could have easily found out about his HIV.

-2 ( +3 / -5 )

I wonder how they established the risk was marginal. If the guy ever got upset with colleagues or bosses whilst at work, it's a no brainer the risk will be inappropriately high.

Sure you shouldn't discriminate, but I would have thought the hospital is purely managing risk vectors here. You wouldn't let an addict have access to drugs in hospital, why is this vector different?

-10 ( +8 / -18 )

@Yubaru. In many countries the requirement to take a physical as a condition for a job is considered discrimination. (same as asking your age, marital status, plans on having children) ie. not necessary for the job.

@Sh1mon M4sada. Employees with HIV can work safely with others if standard hospital procedures are followed. (wearing gloves, proper use of safety devices on needles, and safe operation of surgical instrument).

Companies (and the public) seem to need more education on working with people with HIV and that is what the company said. I am disappointed at the amount of the award but happy the precedent is set. Everyone should be entitled to work if they possess the skills.

11 ( +12 / -1 )

a social worker at a medical institution

Almost 0 risk to patients. Social workers are not medical doctors and don’t perform any physical functions on patients.

@Sh1mon M4sada

I would have thought the hospital is purely managing risk vectors here. You wouldn't let an addict have access to drugs in hospital, why is this vector different?

How are those two things connected? Do you know what social work is? He is not operating on patients or taking their blood in any form. He isn’t even touching patients. HIV is not an addiction and can not be compared to drug addict having access to drugs. HIV is a viral infection that doesn’t affect a person’s behavior or rationale. A social worker is there for counseling and helping with mental and emotional problems. Are you saying you can’t talk to someone because they have HIV?

15 ( +15 / -0 )

 In many countries the requirement to take a physical as a condition for a job is considered discrimination. (same as asking your age, marital status, plans on having children) ie. not necessary for the job.

We are not in "many" countries, we are in Japan, and it's a requirement. So how does your comment relate to here? It is not considered discriminatory, and it is a common practice!

-5 ( +4 / -9 )

We are not in "many" countries, we are in Japan, and it's a requirement.

I've never heard of anyone required to have a medical examination to get a job. It's a requirement of companies to provide them to employees.

I'm not saying it's illegal or that no companies do this - I have no idea about either of those things - but I definitely don't think it's a standard requirement.

3 ( +8 / -5 )

I've never heard of anyone required to have a medical examination to get a job. It's a requirement of companies to provide them to employees.

Guess you never actually worked for a Japanese company. I have worked for quite a few and all required them! As did everyone else who was hired before me and after me as well!

4 ( +11 / -7 )

@JJJetplane

The relation is risk and how to manage it. BTW, I'm referring to intentional and nefarious actions here, not accidental.

Pilots have to pass psych test, in case he breaks up with his/her partner and carryout controlled flight into terrain like the German pilot did. Why is it OK to discrminate against pilots?

Around the world drug users are banned from mine sites. Why are drug users banned from mine sites despite being clean whilst on the job.

You could argue the risk is minimal in this instance, I'm just saying how did they establish it's minimal. They can't.

-6 ( +3 / -9 )

As Yubaru said, all the placed myself and my wife worked required a medical examination once you join the company. Same with international companies in Japan, and schools. It seems that he was dismissed for not mentioning the HIV on the questionnaire (there is a place where you have to list all the serious diseases you ever suffered of). Now the question is: if the court of law decided that a serious disease does not have to be mentioned, then that questionnaire is meaningless. They should probably just list al the diseases that may affect the abilities to work in that environment, and everything else does not have to be declared.

2 ( +5 / -3 )

Guess you never actually worked for a Japanese company. I have worked for quite a few and all required them! As did everyone else who was hired before me and after me as well!

so you're actually going to tell me that every job in every field in japan requires a physical?! so new recruits at major corporations, part-time workers at conbinis, the guy preparing my ramen at my favorite ramen shop, farm workers in niigata, and fishermen ALL took a physical before being hired? buhahahahahahah...

5 ( +7 / -2 )

Guess you never actually worked for a Japanese company. I have worked for quite a few and all required them! As did everyone else who was hired before me and after me as well!

And I've worked for a few, never had to do it, and never heard of anyone around me having to do it.

Just to confirm, you are saying that as a condition of employment with these companies, before starting the job, you were required to get a physical, and that you starting employment at that company was dependent upon the outcome of that physical?

3 ( +8 / -5 )

As Yubaru said, all the placed myself and my wife worked required a medical examination once you join the company.

That's not what Yubaru said. You are speaking of yearly health checks, that companies are required to provide for employees by law. Yubaru was speaking of requiring a physical just to enter the company:

every single job I have ever had here in Japan had a requirement for me to take a physical, prior to being accepted for the positions.

1 ( +7 / -6 )

so you're actually going to tell me that every job in every field in japan requires a physical?! so new recruits at major corporations, part-time workers at conbinis, the guy preparing my ramen at my favorite ramen shop, farm workers in niigata, and fishermen ALL took a physical before being hired? buhahahahahahah...

Companies that offer health insurance and benefits to their workers require them to take a health exam when being hired and annually afterwards. If the insurance policy covers spouses and family members as well, they may also be required to take annual health exams.

-2 ( +3 / -5 )

Starngeland, no, when you join a company, you are required to take a medical, 健康診断, and submit it to HR. The yearly health checks are a different matter

-6 ( +0 / -6 )

Starngeland, no, when you join a company, you are required to take a medical, 健康診断, and submit it to HR. The yearly health checks are a different matter

We don't require our employees to get a health check as a prerequisite to entering our company, neither was I ever required to take one when entering Japanese companies previously, nor have I ever known anyone to have to.

If this is a legal requirement, I'd sure like someone to point me at it, so I can bring our company in compliance with the law. I've never seen any requirement of this ever however, and it does not seem to be the standard among anyone I've ever heard talking about it.

So again:

I'm not saying it's illegal or that no companies do this - I have no idea about either of those things - but I definitely don't think it's a standard requirement.

-2 ( +4 / -6 )

You could argue the risk is minimal in this instance, I'm just saying how did they establish it's minimal. They can't.

And yet he won the case. Go figure.

6 ( +7 / -1 )

when you join a company, you are required to take a medical, 健康診断, and submit it to HR. The yearly health checks are a different matter

The yearly healthcheck IS a 健康診断 (けんこうしんだん kenkou shindan). That word simply means, literal translation, health check. The yearly check is referred to with that word within companies, so I'm not clear on what you are saying is different.

1 ( +5 / -4 )

don,t wanna seem insensitive, but they have a point...

and people that speak from the outside, it,s easier to look good in the picture...

-9 ( +0 / -9 )

I’m as sick as a dog but I have never had a company ask me to prove it...

0 ( +0 / -0 )

Strangerland, it is the law (労働安全衛生法第66条). From wikipedia, in Japanese.

The employer must request employees to do a medical check (健康診断) when they are hired (雇入時健康診断), then a periodical one (定期健康診断 ), typically once a year.

If you don't do it, you are liable to a a fine up to 500,000 yen.

And I should add it is not a prerequisite to enter a company; once you enter, you must do it within a period of time (I don't remember exactly, one month or so)

法律で義務付けられる健康診断 (medical checks required by law)

労働安全衛生法

詳細は「労働安全衛生法による健康診断」を参照

労働者の健康診断は、労働安全衛生法第66条以下および労働安全衛生規則[3]によって定められている。この実施は事業者の義務であり(労働安全衛生法第66条1項)、使用者による健康診断の不実施は法違反となり、50万円以下の罰金に処せられる(労働安全衛生法第120条)。

雇用主は、常時使用する労働者に対し、以下の健康診断を実施しなければならない。

雇入時健康診断

定期健康診断 -

3 ( +6 / -3 )

“But the hospital withdrew the job offer in January last year once learning of his infection from medical records.”

How did the prospective employer have access to his medical records? I’m glad he won this case, especially for a position of social worker, I wouldn’t think the risk would be needed to be considered.

6 ( +7 / -1 )

Hmm, it appears I stand semi-corrected. Thanks for the info, it sent me on a bit of a rabbit hole.

Yubaru stated a requirement of a physical as a condition of employment. That is incorrect. The requirement is for a company to do a physical within a specific period of time. That isn't explicitly stated, but various sites do seem to indicate it to be one month, though a check done within a few months previous can be counted, if it covers the required items that must be checked.

And this does appear to be a more stringent check than the yearly medical check - there are points that must be covered in that initial check that do not need to be covered in yearly checks - specifically in relation to previous employment or health issues.

I'm glad to know this, it's definitely a topic of conversation for our next management meeting.

That all said, back to my original statement:

I've never heard of anyone required to have a medical examination to get a job. It's a requirement of companies to provide them to employees.

I'm not saying it's illegal or that no companies do this - I have no idea about either of those things - but I definitely don't think it's a standard requirement.

I still stand by this point, as it differs from the requirement of a company to provide a medical check soon after employment is initiated.

0 ( +5 / -5 )

You could argue the risk is minimal in this instance, I'm just saying how did they establish it's minimal. They can't.

Scientifically.

There are plenty of evidence that people with a controlled infection can reduce the risk for others to background levels, that includes their sexual partners and sex without protection.

Lancet. 2019 Jun 15;393(10189):2428-2438. doi: 10.1016/S0140-6736(19)30418-0.

Its easy to provide proof of viral suppression (for example less than 200 copies of viral RNA per ml of blood) which demonstrate that the risk is minimal.

On the other topic I have worked on several places without ever having to submit to a medical examination before getting the job. One job on a governmental institution did ask for it with very specific parameters (but no HIV status) as well as several other certificates so I had to go to 3 different places to get them. It is obviously not a universal rule, but probably for some kinds of jobs its a more common requirement.

4 ( +4 / -0 )

And I've worked for a few, never had to do it, and never heard of anyone around me having to do it.

Guess what, just because you never heard of it, does not mean it does not exist. And guess what, if you choose not to take one, dont expect to be hired because you refused.

Your argument is purely academic, you want to work for someone here, and they require you to get a physical and you refuse, you might as well turn around and look for some where else to work!

And read this too; Just about any Japanese company also has a period after being hired that you are actually on a trial basis, and if you refuse to follow their "rules" you can be released without cause.

It's a requirement!

Strangerland, it is the law (労働安全衛生法第66条). From wikipedia, in Japanese.

The employer must request employees to do a medical check (健康診断) when they are hired (雇入時健康診断), then a periodical one (定期健康診断 ), typically once a year.

If you don't do it, you are liable to a a fine up to 500,000 yen.

And I should add it is not a prerequisite to enter a company; once you enter, you must do it within a period of time (I don't remember exactly, one month or so)

1 ( +4 / -3 )

May be the key component was his willingness and ability to deceive on official forms, rather than his contageousness?

If there's two people who can do the job, I'd employ the one who was honest and fire the one who was not regardless of why.

-5 ( +0 / -5 )

A hospital that discriminates against people with an illness...what kind of world are living in?

0 ( +1 / -1 )

Guess what, just because you never heard of it, does not mean it does not exist.

Guess what, I explicitly stated I wasn't claiming it doesn't exist:

I'm not saying it's illegal or that no companies do this

Continuing:

guess what, if you choose not to take one, dont expect to be hired because you refused.

As I said, the requirement may not be illegal. I have no idea one way or the other.

But as I stated, I've never heard of anyone required to do this as a prerequisite to getting a job in Japan. Never heard of it, never been forced to do it, never heard of anyone forced to do it, and don't force people to do it in my own company.

-4 ( +2 / -6 )

pacificwestToday  02:24 pm JST

“May be the key component was his willingness and ability to deceive on official forms, rather than his contageousness?”

Was he legally required to divulge that information?

3 ( +3 / -0 )

It does say, "failing to report" rather than "having the disease".

It's a difficult one for employers. If you have 10 applicants for the same job, why take on and train up an employee if you know they are going to take a lot of sick days off, or die quick?

-6 ( +0 / -6 )

Pacificwest,

The following section from the article inclines me to think there was no legal requirement to divulge that information.

“The Sapporo District Court ruled the Hokkaido man, in his 30s, did not need to report the infection, and that the decision by the social welfare corporation based in the city was illegal.”

“why take on and train up an employee if you know they are going to take a lot of sick days off, or die quick?”

perhaps you should study study the current effectiveness of medication for this disease. And also notice this from the article: “State guidelines in Japan ban discriminatory treatment at work based on an HIV infection.”

2 ( +2 / -0 )

Getting a physical is not a prerequisite to getting a job. Getting one AFTER you have been hired is a requirement to keeping your job.

2 ( +3 / -1 )

Never heard of it, never been forced to do it, never heard of anyone forced to do it, and don't force people to do it in my own company.

You really dont know a whole hell of a lot about Japan, culturally or otherwise, if you use this as your argument or discussion point.

2 ( +6 / -4 )

You really dont know a whole hell of a lot about Japan

You're right, I don't. I only know my own experiences from a couple decades of living here.

And in that time, I never heard of it, never been forced to do it, never heard of anyone forced to do it, and don't force people to do it in my own company.

0 ( +5 / -5 )

@Educator

perhaps you should study study the current effectiveness of medication for this disease.

What's the cost of ongoing treatment, and is it paid for privately, by workplace, or by national insurance?

If it is a private company paying for private insurance I could see why they and their insurers might have an issue with it given it was not disclosed.

The employer is made to look like the bad guy but it could be the insurer is saying 'no cover". I don't know the laws and how far they apply (eg public sector/private sector), and we don't know what the job application form specifically asked for, but non-disclosure is bad form.

What sort of health related questions are people normally asked? "Do you have any communicable disease", "have you had any serious illness in the past 6 months", "do you have disabilities" etc?

-4 ( +0 / -4 )

Yubaru

Its very odd that every single job you had here in Japan REQUIRED you to take a physical. (and I recall you are a long term resident, married and living here).

Taking a physical to be employed is not standard fare here. And yet you had it on every single job? You should refuse and and retain your privacy.

3 ( +3 / -0 )

Japanese companies do not require physicals or whatever else probation periods etc.

Maybe they put this on the foreigners in their company and you guys followed along?

I’m Japanese American, own my own biz, and my favorite word is NO.

Try it, along with being indispensable and valuable to your company.

2 ( +3 / -1 )

For the Medical Checkup situation, by Law Companies based in Japan must make available Annual Medical checkups - though there is no statement that the Employee's have to accept them.

3 ( +3 / -0 )

You'd also wonder, why Japan hasn't built up a massive DNA database from all these "Health-Checks"...

1 ( +1 / -0 )

I think I'm correct in saying every blood sample is tested for AIDS/HIV?

1 ( +1 / -0 )

Insurance etc is irrelevant. The bottom line is “State guidelines in Japan ban discriminatory treatment at work based on an HIV infection.”.

2 ( +2 / -0 )

And since “The Sapporo District Court ruled the Hokkaido man, in his 30s, did not need to report the infection” I think we can assume there is no law requiring the man to have disclosed the infection.

2 ( +2 / -0 )

I could not find the specific law, but the wording in English is "at work".

In this case, he was not "at work" but applying for work. Also, I find the use of "guidelines" unusual.

Usually "guidelines" would mean it was discretionary.

Is it poor translation or poor legal understanding?

Lastly, it is national or prefecture wide? Again, the use of "state" threw me.

Does it apply to only governmental employers or private employers?

Is it this?

Guidelines on AIDS issues in workplaces (1995)

https://www.jniosh.johas.go.jp/icpro/jicosh-old/english/guideline/2073-906.html

It uses the language "should not" rather than "must not", again suggesting an advisory rather than a prohibition.

We need better clarification.

0 ( +0 / -0 )

Japanese companies do not require physicals or whatever else probation periods etc.

Really? Tell that to ALL the people who work for any of the airline companies here, (JAL, ANA, etc.) the railway corporations (JR etc), bus companies, taxi companies, hospitals, etc etc etc, THEY require physicals, and many if not all have probationary periods as well, and it's for ALL employees Japanese included!

-3 ( +0 / -3 )

Ok airlines I do believe. But you said everyone and everything, and that’s just not the same.

2 ( +2 / -0 )

And in that time, I never heard of it, never been forced to do it, never heard of anyone forced to do it, and don't force people to do it in my own company.

Why do you keep repeating this? And my comment about you not knowing about culture and whatnot, was tied to this as well. Kind of like you are saying, "Oh I never heard of it, so it CAN'T be true!"

Kids who are job hunting in technical colleges, ALL take a year physical, and many places they are applying for REQUIRE them to have a physical as part of the entry practice. Also the law was pointed out to you as well,and while you are playing semantics with the English. I can give countless numbers of other examples as well!

NO Japanese person is going to refuse a potential employer's request that they take a physical, before OR after getting hired and in their probationary period.

If you think otherwise, you REALLY should learn more about the people and culture here, even after "decades" of being here!

-2 ( +0 / -2 )

Why do you keep repeating this?

Your first comment on the thread, to which I replied, setting you off:

We are not in "many" countries, we are in Japan, and it's a requirement.

I pointed out it’s not a requirement. You keep going on that it is, and I’ve pointed out that I don’t believe it is, as I’ve never seen it, never done it, never heard about it.

Kind of like you are saying, "Oh I never heard of it, so it CAN'T be true!"

I clearly stated the opposite of what you just said:

I'm not saying it's illegal or that no companies do this - I have no idea about either of those things - but I definitely don't think it's a standard requirement.

2 ( +2 / -0 )

NO Japanese person is going to refuse a potential employer's request that they take a physical, before OR after getting hired and in their probationary period. 

If you think otherwise, you REALLY should learn more about the people and culture here, even after "decades" of being here!

Which comments of mine are you replying to? This is baffling. I haven’t stated anything at all in this thread whatsoever on the above topics, in any direction.

2 ( +2 / -0 )

Pacificwest,

Why would the use of “state” throw you? Japan does not have “states” as in the USA, it has prefectures. The use of state here clearly means the nation. 

State: a nation/territory considered as an organized political community under one government. Example: 

France, Germany, and other European states...

0 ( +0 / -0 )

I pointed out it’s not a requirement. You keep going on that it is, and I’ve pointed out that I don’t believe it is, as I’ve never seen it, never done it, never heard about it.

Strangerland, it is the law (労働安全衛生法第66条). From wikipedia, in Japanese.

The employer must request employees to do a medical check (健康診断) when they are hired (雇入時健康診断), then a periodical one (定期健康診断 ), typically once a year.

If you don't do it, you are liable to a a fine up to 500,000 yen.

And I should add it is not a prerequisite to enter a company; once you enter, you must do it within a period of time (I don't remember exactly, one month or so

Also I have given plenty of examples of corporations that DO require them, and there is the law here, where even you stated that you "stood partially corrected" as well.

Maybe YOUR company is the exception to the rule! JAPANESE companies, requirement by law or otherwise do have their potential employees or probationary one's take one!

And culturally speaking NO ONE is going to refuse is told to get one!

-3 ( +0 / -3 )

 Employees with HIV can work safely with others if standard hospital procedures are followed. (wearing gloves, proper use of safety devices on needles, and safe operation of surgical instrument).

Companies (and the public) seem to need more education on working with people with HIV and that is what the company said. I am disappointed at the amount of the award but happy the precedent is set. Everyone should be entitled to work if they possess the skills.

It seems that ignorance about HIV is still as bad in Japan, like in the US. There's been similar discrimination concerning jobs in restaurants in America.

People need to get the facts about AIDS.

1 ( +1 / -0 )

Maybe YOUR company is the exception to the rule! JAPANESE companies, requirement by law or otherwise do have their potential employees or probationary one's take one!

One thing is that this CAN be a requirement in some companies, another completely different would be that this IS a requirement for all companies.

I have been in several workplaces that do not require at all any examination before signing the contract of employment and will later take the health check at the same time as everybody else already employed (longes for me was around 6 months). Some have been contracts (1-3 years) that have no "probationary time" or that even make extremely difficult to fire the employee (salary coming from a national grant-in-aid that cannot be returned so it has to be expended as granted).

It is clear for me that asking for a health examination before hiring someone is not something that a company HAS to do, they will have to offer the health check to the employees later but even that can be waived or sidestepped if the employee don't want to do it in the company.

And yes, I know of at least one Japanese person that let go an offer from a government agency because they had quite annoying requirements before signing the contract (including a full health check up with hospital stay) and choose a similar offer from a private company that hired him needing only the usual paperwork so it is not impossible.

0 ( +0 / -0 )

I guess the real lesson to take from this is, if you are going to fire someone because they have HIV, even because it is for LYING about having HIV, don't tell them that.

Make up some other plausible sounding excuse, or do so within a probationary period.

And if you are an employer, find out if this law applies to you.

It strikes me they got fired because they lied, which I would support, not because they had HIV, which would have been responsible of them to report.

Were they gay, a drug user, or infected by contaminated blood?

@Educator

Why would the use of “state” throw you?

Because the article is so vague or poorly translated, and does not refer to which specific law it refers, that it is unclear whether the author was translating kokka (国家) or todōfuken (都道府県) as state, as in whether it was a nationwide law or a prefecture level law.

If someone says to me, "state law" I would think prefecture, not national, eg jōrei, kisoku, chokusetsu seikyū etc. If it's a national law, I would say national.

Perhaps it should have been 'statute' or 'statutory law'? As in roppō (六法), perhaps minpō (民法) or one of the other hōten (法典) in contrast to the hanreihō (判例法) or hanrei (判例).

But thank you for offering us the other dictionary definition of "state".

One of the reasons for asking is to discover to whom this law applies and at what level.

The article refers to a 'social welfare corporations' (Shakai Fukushi-Hojin 社会福祉法人), private non-profit entities that are more strictly regulated than civil law-based public service corporations ( kōeki shadan/zaidan hōjin 公益社団法人); therefore the law may only apply to them, governmental, municipal or public interest entities, not private employers.

Social welfare entities generally fall under Article 34 of Japan's Civil Code/Social Welfare Services Law and is under the jurisdiction of the prefectural governor or the Ministry of Health and Welfare.

The military is another employer who requires physicals and disclosure, just because some language school does not, does not mean much.

0 ( +0 / -0 )

Obviously, I am not legally trained, so take professional advice if you need it and then decide what you want to do, but I think the above contains some useful pointers.

0 ( +0 / -0 )

Also I have given plenty of examples of corporations that DO require them

And? I've been very clear that it may exist, and that I don't know that one way or another.

But your first post was that this was a requirement to enter Japanese companies prior to employment. I pointed out that while this may happen, it's not a standard requirement, and that I've never actually seen it. That really bothers you for some reason.

there is the law here, where even you stated that you "stood partially corrected" as well.

Well yes, after you had stated that it's a requirement to enter, another poster said it was a requirement AFTER entry, which I initially denied, but then upon further researching, discovered I was incorrect. This was where I stood corrected. I have stood by my original point to you all along.

Maybe YOUR company is the exception to the rule! JAPANESE companies, requirement by law or otherwise do have their potential employees or probationary one's take one!

Again, I've never had to do this when entering Japanese companies, I've never had anyone tell me of having to do it, and we have never required it for people to enter our company.

You seem to think that this is the standard. I personally don't think it is, but that's personal observation. What I can say with confidence though is that it most definitely is not a requirement of all companies.

Which, of course, is what I've been saying all along.

1 ( +1 / -0 )

So he admitted to lying/omitting info on his application. Should he be thanked? I certainly wouldn't want someone with HIV taking care of me.

-1 ( +1 / -2 )

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