Public institutions have a special duty to protect the sensitive information they handle, especially when it comes to information belonging to their employees. HIV carriers who voluntarily reveal their serological status to the institution for which they work have rights that our legal system protects. In this blog we discuss the right to confidentiality included in the General Law on HIV-AIDS on the occasion of judgment 3288-2021 handed down by our Constitutional Court, which found that the National Learning Institute (INA, in Spanish) infringed upon this right.
The right to confidentiality under Costa Rican law
In Costa Rica, the General Law on HIV-AIDS expressly protects the right to confidentiality of HIV carriers. The Law establishes several safeguards for this right, such as not allowing an employer to require an HIV test to hire a person or to renew his/her contract, the duty to protect the serological status of an employee and the duty to use this information for the purpose expressly authorized by the employee.
The right to confidentiality was analyzed by our Constitutional Court in an amparo filed against INA. We will discuss this case next.
The conviction against INA for infringing upon the right to confidentiality of one of its employees
In judgment 3288-2021, the Constitutional Court found that INA infringed upon the right to confidentiality of its employees, specifically regarding his serological status.
The employee had sued INA before a Labour Court. In filing its response to the lawsuit, INA provided a complete copy of the administrative file of its employee, including the test indicating that he was HIV positive. He filed an amparo before the Constitutional Chamber. The Chamber concluded that the fact that INA revealed the serological status of its employee without his authorization and for a purpose other than the one initially authorized by him, violated his right to confidentiality. The Chamber recalled that, if a collaborator shares his serological status with his employer, the employer is legally obliged to keep this information absolutely confidential. The employer cannot reveal this information without the authorization of his/her employee.
The Constitutional Court ordered INA to: “(…) issue the corresponding specific provisions to stop this type of practice in the institution and, consequently, safeguard the confidentiality of the documents provided by its workers when they are related to sensitive information, as in this case, the human immunodeficiency virus or HIV and the acquired immunodeficiency syndrome or AIDS. Likewise, you must request the competent court to immediately return said evidence and refrain from incurring again in the behaviors that gave merit to accept this amparo.”
This case is a very useful precedent for the defense of the rights of people with HIV. First, because it gives the possibility to take these cases to the Constitutional Court and have the Court grant measures quickly. Second, because it establishes that the employer is legally obliged to zealously protect this information. Third, because it reaffirms that this information, once shared by the employee, can only be used for the purpose that the person indicates and cannot be shared, under any circumstances, without their authorization. Fourth, because it reaffirms that if the worker for any reason sues his employer, he cannot simply share the serological status of his collaborator unless it is strictly necessary.
At CELIG we provide specialized services to the LGBTQI+ community. If you want more information or make an appointment with us, call us at 2253-0256 or write to us at info@celigcr.com.
We are located in San José, Barrio Escalante.
M.Sc. Ana Isabel Sibaja Rojas
CELIG – Center for Equal Litigation
