Clinical observation of HIV-infected persons. How to get tested for HIV infection in a clinic - tests during a routine medical examination. Are they tested for HIV during a medical examination?

Is it possible for an HIV-infected employee to work as a cook in an educational institution? because Minor students and preschool children eat in our canteen.

What should an employer do if an employee has HIV?

Question

Is it possible for an HIV-infected employee to work as a cook in an educational institution? because Minor students and preschool children eat in our canteen.

Answer

Answer to the question:

By Decree of the Government of the Russian Federation dated December 1, 2004 No. 715, the disease caused by the human immunodeficiency virus (HIV) is included in the list of socially significant diseases and in the list of diseases that pose a danger to others.

In accordance with Art. 5 Federal Law of March 30, 1995 No. 38‑ Federal Law "On preventing the spread in the Russian Federation of the disease caused by the human immunodeficiency virus (HIV infection)" (hereinafter referred to as Law No. 38‑ Federal Law) HIV-infected citizens of the Russian Federation have all rights and freedoms on its territory and bear responsibilities in accordance with the Constitution of the Russian Federation, the legislation of the Russian Federation and the legislation of the constituent entities of the Russian Federation.

The rights and freedoms of citizens of the Russian Federation can be limited in connection with the presence of HIV infection only by federal law.

In accordance with Art. 17 Law No. 38‑ The Federal Law does not allow dismissal from work, refusal to hire, refusal to admit to educational institutions and institutions providing medical care, as well as restriction of other rights and legitimate interests of HIV-infected people on the basis of their HIV infection, as well as restriction rights and legitimate interests of family members of HIV-infected people, unless otherwise provided by Law No. 38- Federal Law.

Thus, as a general rule, refusal to hire or dismissal from work only because a citizen (employee) has HIV infection is not allowed.

Meanwhile, the occupation of certain positions (professions) is incompatible with the presence of HIV infection in the employee. Thus, employees of certain professions, industries, enterprises, institutions and organizations, the list of which is approved by the federal executive body authorized by the Government of the Russian Federation, are required to undergo a mandatory medical examination to detect HIV infection during mandatory pre-employment and periodic medical examinations. Currently, such a list is approved by Decree of the Government of the Russian Federation dated September 4, 1995 No. 877. In addition, the Sanitary and Epidemiological Rules SP 3.1.5.2826‑ 10 the list of such professions has been clarified and supplemented. Taking this into account, the following employees are subject to mandatory medical examination to detect HIV infection upon entry to work and during periodic medical examinations:

Doctors, paramedical and junior medical personnel of centers for the prevention and control of AIDS, health care institutions, specialized departments and structural divisions of health care institutions, engaged in direct examination, diagnosis, treatment, service, as well as conducting forensic medical examinations and other work with persons infected with human immunodeficiency virus, having direct contact with them;

Doctors, paramedical and junior medical personnel of laboratories (groups of laboratory personnel) who screen the population for HIV infection and study blood and biological materials obtained from persons infected with the human immunodeficiency virus;

Scientists, specialists, employees and workers of research institutions, enterprises (productions) for the production of medical immunobiological preparations and other organizations whose work is related to materials containing the human immunodeficiency virus;

Medical workers in surgical hospitals (departments) upon entry to work and subsequently once a year;

Persons undergoing military service and entering military educational institutions and military service under conscription and contract, when conscripted for compulsory military service, when entering service under a contract, when entering military universities of ministries and departments that establish restrictions for the admission of persons to service with HIV infection;

Foreign citizens and stateless persons when applying for a citizenship permit, or a residence permit, or a work permit in the Russian Federation, when foreign citizens enter the territory of the Russian Federation for a period of more than 3 months.

The list of specific positions and professions of employees (from those indicated in the list) is determined by the head of the institution, enterprise, or organization.

The educational institution is not indicated in this list, nor are catering workers. However, it is advisable to consult with an occupational pathologist who conducts examinations.

If, during a preliminary medical examination, an HIV infection is detected in a person applying for a position or profession provided for in the relevant lists, then the refusal to conclude an employment contract will be lawful. The refusal will also be legal when an employee applying for a position (profession) whose occupation involves undergoing an examination to detect HIV infection refuses to undergo a medical examination.

If an employee refuses a mandatory medical examination, the employer is obliged to immediately remove him from work on the basis of Part 1 of Art. 76 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) before passing the examination. During the period of suspension from work (preclusion from work), wages are not accrued to such an employee. Passing a periodic medical examination for these employees is an obligation, therefore, if an employee refuses to undergo a mandatory periodic medical examination (including to detect HIV infection) without good reason, he may be subject to disciplinary action. This means that, under certain circumstances, an employment contract with an employee can be terminated under clause 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation (for repeated failure by an employee to fulfill work duties without good reason, if he has a disciplinary sanction).

If HIV infection is detected in an employee holding a position provided for in the relevant list, he is subject to transfer (on a permanent basis) to another job available to the employer that excludes conditions for the spread of HIV infection. In this case, the employee must give written consent to such a transfer. If the employee refuses to transfer or the employer does not have the corresponding work, the employment contract with him is terminated in accordance with clause 8 of part 1 of art. 77 of the Labor Code of the Russian Federation (an employee’s refusal to transfer to another job, which is necessary for him in accordance with a medical report).

The need to transfer to another job due to the detection of HIV infection is not always associated with occupying a position (profession) provided for in a special list. Such a need may arise simply due to the fact that the disease leads to loss of ability to work (the employee is unable to perform his work functions due to the development of the disease), up to and including recognition as disabled. In this case, the medical and social expert commission establishes the disability group, determines social protection measures and makes recommendations for further work. And if the employee refuses such a transfer or the employer does not refuse the corresponding work, the employment contract with him is terminated in accordance with clause 8 of Part 1 of Art. 77 Labor Code of the Russian Federation.

A situation cannot be ruled out when, at a certain stage of the illness, an employee may be declared completely incapable of working in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation. In this case, dismissal is made due to circumstances beyond the control of the parties - clause 5, part 1, art. 83 Labor Code of the Russian Federation.

Details in the materials of the Personnel System:

Regulatory framework

GOVERNMENT OF THE RUSSIAN FEDERATION

RESOLUTION

ON APPROVAL OF THE LIST OF INDIVIDUALS EMPLOYEES

PROFESSIONS, PRODUCTIONS, ENTERPRISES, INSTITUTIONS

AND ORGANIZATIONS THAT PASS COMPULSORY MEDICAL

CERTIFICATION TO DETECT HIV INFECTION IN

CARRYING OUT THE MANDATORY PRELIMINARY

ENTRY TO WORK AND PERIODIC

MEDICAL EXAMINATIONS

In accordance with Article 9 of the Federal Law “On preventing the spread in the Russian Federation of the disease caused by the human immunodeficiency virus (HIV infection)” (Collected Legislation of the Russian Federation, 1995, No. 14, Art. 1212), the Government of the Russian Federation decides:

Approve the attached List of workers of certain professions, industries, enterprises, institutions and organizations who undergo mandatory medical examination to detect HIV infection during mandatory pre-employment and periodic medical examinations.

Chairman of the Government

Russian Federation

V. CHERNOMYRDIN

Approved

Government Decree

Russian Federation

SCROLL

WORKERS OF SPECIFIC PROFESSIONS, PRODUCTIONS,

ENTERPRISES, INSTITUTIONS AND ORGANIZATIONS THAT PASS

MANDATORY MEDICAL EXAMINATION FOR

DETECTING HIV INFECTION WHEN CARRYING OUT MANDATORY

PRELIMINARY WHEN ENTERING A JOB AND

PERIODIC MEDICAL EXAMINATIONS

1. The following employees are subject to mandatory medical examination to detect HIV infection upon entry to work and during periodic medical examinations:

a) doctors, paramedical and junior medical personnel of centers for the prevention and control of AIDS, health care institutions, specialized departments and structural divisions of health care institutions engaged in direct examination, diagnosis, treatment, service, as well as conducting forensic medical examinations and other work with individuals infected with the human immunodeficiency virus and having direct contact with them;

b) doctors, paramedical and junior medical personnel of laboratories (groups of laboratory personnel) who examine the population for HIV infection and study blood and biological materials obtained from persons infected with the human immunodeficiency virus;

c) scientists, specialists, employees and workers of research institutions, enterprises (productions) for the production of medical immunobiological preparations and other organizations whose work is related to materials containing the human immunodeficiency virus.

2. The list of specific positions and professions of employees specified in paragraph 1 is determined by the head of the institution, enterprise, organization.

Concealment of information threatens criminal liability for knowingly placing a person at risk of contracting HIV infection and contracting HIV infection, provided for in Art. 122 of the Criminal Code of the Russian Federation.

But, Article 17 of the Federal Law of March 30, 1995 N 38-FZ “On preventing the spread in the Russian Federation of the disease caused by the human immunodeficiency virus (HIV infection)” prescribes: Dismissal from work, refusal to hire, refusal of admission to organizations engaged in educational activities and medical organizations, as well as restriction of other rights and legitimate interests of HIV-infected people based on the presence of HIV infection, as well as restriction of housing and other rights and legitimate interests of family members of HIV-infected people , unless otherwise provided by this Federal Law.

Clause 7.7. Resolution of the Chief State Sanitary Doctor of the Russian Federation dated January 11, 2011 N 1 “On approval of SP 3.1.5.2826-10 “Prevention of HIV Infection” prescribes: Providing information about the diagnosis of HIV infection without the consent of a citizen or his legal representative is allowed in the cases provided for legislation of the Russian Federation:

For the purpose of examining and treating a citizen who is unable, due to his condition, to express his will;
- when there is a threat of the spread of infectious diseases, mass poisonings and injuries;
- at the request of the bodies of inquiry and investigation, the prosecutor and the court in connection with an investigation or trial;
- at the request of military commissariats or military medical services;
- in the case of providing assistance to a minor under the age of 18 to inform his parents or legal representatives;
- if there are grounds to believe that harm to a citizen’s health was caused as a result of illegal actions.
With the written consent of a citizen or his legal representative, it is permitted to transfer information constituting medical confidentiality to other citizens, including officials, in the interests of examining and treating the patient, for conducting scientific research, publishing in scientific literature, using this information in the educational process and in for other purposes.

If only one of the employer’s employees disseminates this information, then in accordance with Art. 137 of the Criminal Code of the Russian Federation, the illegal collection or dissemination of information about the private life of a person, constituting his personal or family secret, without his consent, or the dissemination of this information in a public speech, publicly displayed work or the media will be a criminal offense.

Therefore, you do not need to quit, because... by itself "In relation to

to HIV infection, the international community has now recognized that the presence
such a person should not be considered a condition that poses a threat to
public health, since the human immunodeficiency virus, although it is
infectious, is not transmitted as a result of the presence of an infected person in
country or through accidental contact through the air or common media such as
food or water, but through specific contacts, which are almost always
private (statement of the Joint United Nations Program on HIV/AIDS and the International Organization for Migration on restrictions on the right to movement in connection with HIV/AIDS, adopted in June 2004). (Resolution of the Constitutional Court of the Russian Federation of March 12, 2015 N 4-P “ In the case of verifying the constitutionality of the provisions of part four of Article 25.10 of the Federal Law “On the procedure for leaving the Russian Federation and

entry into the Russian Federation”, subparagraph 13 of paragraph 1 of Article 7
Federal Law “On the Legal Status of Foreign Citizens in the Russian Federation”
Federation" and paragraph 2 of Article 11 of the Federal Law "On Prevention
spread in the Russian Federation of the disease caused by the human immunodeficiency virus (HIV infection) “in connection with complaints from a number of citizens”)

Specialized AIDS clinic

In such medical institutions there are anonymous rooms for voluntary blood donation for research. Only citizens of Russia or foreign citizens permanently or temporarily residing in the territory of the Russian Federation and registered at their place of residence can receive free medical care. In order to get an appointment, you must make an appointment in advance.

The timing of an HIV test in a clinic is slightly longer than in an AIDS center - here you will have to wait no more than 3 days from the moment of donating blood. The study is carried out using fourth-generation test systems that work using the ELISA method.

If the result is positive, a confirmatory test is performed - immunoblotting. This is a serological method, which is more accurate than enzyme immunoassay, and is used to make or refute a diagnosis.

How long does it take to prepare HIV tests at the clinic if the biological material is sent for additional examination? In this case, specialists need to test the samples using ELISA (several days), then carry out immunoblotting - this is another 3-4 days.

Based on these data, it becomes clear how many HIV tests are done in the clinic. If at least one ELISA test gives a positive result, you will have to wait about a week.

Blood is taken from a vein, and before donation, you must be warned that you should not eat food the day before (8 hours before).

If the virus is detected, you must register, then the clinic for HIV-infected people will provide a free course of antiretroviral therapy (if there are indications for it). You also need to regularly conduct viral load tests and monitor immunosuppression.

Is an HIV test taken during a medical examination?

Testing is mandatory for healthcare workers who come into contact with infected people, as well as with contaminated biological material. Every year, when clinical examination is carried out, HIV tests are mandatory for people working in this field.

This examination is included in the medical examination when hiring for the Ministry of Internal Affairs, the FSB and the Prosecutor's Office - further it is not carried out during routine medical examinations.

If a foreign citizen collects documents for the migration service and undergoes a medical examination, an HIV test is mandatory. At all stages of obtaining citizenship, the Federal Migration Service must provide a certificate of absence of this infection.

Do they take an HIV test during medical examination if the employee is not a medical professional? No, such examination is not included in the list of mandatory ones. If the employer demands to go through it, the employee always has the right to refuse (the law will be on his side).

During a medical examination, blood is taken for HIV only with the patient’s consent. If this document is not signed, the action is illegal. All employees should know that they have the right to refuse unnecessary research with impunity.

The Ministry of Health did not include an HIV test in the medical examination program in 2017. The reason may lie both in lack of funding and in ethical terms, experts believe

Optional and anonymous

The Ministry of Health has developed changes to the medical examination program for the adult population, as follows from the amendments posted on the legal information disclosure website. The document did not include free testing for HIV infection. In September 2016, Russian Minister of Health Veronika Skvortsova promised that such testing would be included in the clinical examination program from 2017.

If the amendments are adopted, then starting next year, general practitioners will be required to inform all citizens aged 21 to 48 years undergoing medical examination about the opportunity to do an anonymous test for HIV infection in specialized medical institutions. Consultations should be accompanied by a list of addresses where such tests are performed.

The Ministry of Health planned to obtain funds to expand the program by abandoning ineffective research. The Ministry of Health did not explain to RBC the reasons for refusing to include an HIV test in the mandatory program.

The department refused to test for HIV as part of clinical examination due to a lack of funds, believe members of the State Duma Committee on Health Protection Fedot Tumusov and Alexander Petrov. Andrey Skvortsov, coordinator of the Patient Control movement, agrees with them.

This is not the first time that the government has been unable to find funds in the federal budget to combat HIV infection. Thus, on November 15, due to lack of funding, the special commission decided not to add new anti-HIV medications to the list of vital drugs. As Elena Maksimkina, director of the drug supply department of the Ministry of Health, said, in 2016, 20.8 billion rubles were spent on the purchase of HIV drugs. At the same time, 17.8 billion rubles are allocated for all purposes related to the prevention and treatment of HIV and viral hepatitis B and C in 2017, 17.5 billion rubles in 2018, 17.1 billion in 2019 rub.

Mandatory and unethical

Another reason why a free test might not have been included in the medical examination program is legal: now the test is only taken voluntarily, explains Tumusov. Testing as part of medical examination should be mandatory, the deputy from A Just Russia is sure, but first it is necessary to explain to the population why this is necessary. One can already observe the positive experience of Yekaterinburg, where, after reports of an unofficial HIV epidemic, mass testing for the infection began, says Tumusov.

Testing can be included in the medical examination program if doctors in district clinics and non-specialized hospitals are more informed about the characteristics of HIV infection and how it spreads, Skvortsov believes. “Often, those infected are faced with medical staff refusing necessary medical intervention and other forms of discrimination,” he notes. Also, a doctor at a regular clinic is often unable to provide pre-test and post-test counseling, which will be required when mandatory testing is introduced into the medical examination program, Skvortsov believes.

This is also related to the fact that now patients often refuse testing under the voluntary health insurance program, says Igor Pchelin, chairman of the regional charitable public foundation for fighting AIDS “Steps”. This is explained by the fact that doctors may not maintain medical confidentiality and the diagnosis may become known to colleagues, neighbors and friends of the infected person.

With sufficient funding in 2020, the government plans to annually test 35% of citizens for HIV, as indicated by the spread of infection. From the draft strategy, it follows that such financing should amount to an additional 3.2 billion rubles. Every year. This amount is needed to examine an additional 20 million citizens at a cost of one test of 150 rubles. It is currently unknown whether funds will be allocated. In 2015, HIV testing coverage was about 30 million people, or 19.3% of the population.

Reply from 02/05/2014 14:04

Article 17, Federal AIDS Law “Prohibition on restricting the rights of HIV-infected people.”

“Dismissal from work, refusal to hire... as well as restriction of other rights and legitimate interests of HIV-infected people on the basis of their HIV infection are not allowed...”. At the same time, according to Article 9 of the law, “employees of certain professions, industries, enterprises, institutions and organizations, the list of which is approved by the Government of the Russian Federation, undergo a mandatory medical examination to detect HIV infection during mandatory pre-employment and periodic medical examinations.” .

The UN International Guidelines on HIV/AIDS and Human Rights states: “States should take measures to ensure that persons living with HIV and AIDS are allowed to work as long as they are able to perform the functions of the workplace. .. An applicant or employee should not be required to provide information to an employer regarding his or her HIV status... The State's obligations to prevent any form of discrimination in the workplace, including on the basis of HIV/AIDS, should be extended to the private sector sector... In the vast majority of professions and areas of activity, the work performed does not involve the risk of acquiring or transmitting HIV during contact between workers, as well as from worker to client or from client to worker.” The latter position has been confirmed by large-scale studies under the auspices of the World Health Organization and the International Labor Organization.

The ban on discrimination in the world of work is also reflected in Russian legislation.

The list of professional workers who are required to undergo HIV testing is given in the government decree; it includes the following specialties:

A) doctors, paramedical and junior medical personnel of centers for the prevention and control of AIDS, health care institutions, specialized departments and structural divisions of health care institutions, engaged in direct examination, diagnosis, treatment, service, as well as conducting forensic medical examinations and other work with persons infected with the human immunodeficiency virus and having direct contact with them;

B) doctors, paramedical and junior medical personnel of laboratories (groups of laboratory personnel) who examine the population for HIV infection and study blood and biological materials obtained from persons infected with the human immunodeficiency virus;

C) scientists, specialists, employees and workers of research institutions, enterprises (productions) for the production of medical immunobiological preparations and other organizations whose work is related to materials containing the human immunodeficiency virus.

In other words, employees who:

A) treat and examine patients with HIV infection;

B) examine blood and biomaterials containing HIV;

C) work in industries where HIV-containing materials are used.

From the contents of this resolution we can conclude that it primarily protects the interests of workers who have a risk of contracting HIV while performing their professional duties. It is logical to assume that HIV testing upon entry to work and periodic medical examinations is intended to promptly identify cases of occupational infection and, in particular, to resolve the issue of paying compensation (benefits) to employees who contracted HIV in the workplace. This is also stated in federal law.

Federal Law “On preventing the spread in the Russian Federation of the disease caused by the human immunodeficiency virus (HIV infection).” Article 21. State one-time benefits.

“Employees of enterprises, institutions and organizations of the state and municipal healthcare systems that diagnose and treat HIV-infected people, as well as persons whose work involves materials containing the human immunodeficiency virus, in the event of infection with the human immunodeficiency virus while performing their official duties, have the right to receiving state one-time benefits.”

Please note that the list of specialties subject to mandatory medical examination completely coincides with the list of those eligible to receive compensation in the event of infection. These same professional categories, according to the Federal AIDS Law, are provided with additional benefits.

Federal Law “On preventing the spread in the Russian Federation of the disease caused by the human immunodeficiency virus (HIV infection).” Article 22. Benefits in the field of labor.

“Employees of enterprises, institutions and organizations of the state and municipal health care systems that diagnose and treat HIV-infected people, as well as persons whose work involves materials containing the human immunodeficiency virus, are paid an increase to the official salary, a reduced working day and additional leave for work in particularly hazardous working conditions.”

Mandatory examination of workers is thus part of a single set of measures to protect the interests of these workers, which includes monitoring their health in connection with hazardous working conditions.

The Federal Law does not say what the consequences of identifying HIV infection in workers of these professions may be, in particular, whether they can be fired. In light of the above, refusal to hire or dismissal of an employee due to detected HIV infection is meaningless: after all, a set of legislative measures is designed to protect the interests of the employee in a situation of risk of infection, and if infection has already occurred, this issue is automatically removed.

However, the Rules for Conducting Mandatory Medical Examination for the Detection of Human Immunodeficiency Virus (HIV Infection), approved by the Government of the Russian Federation, explain:

“17. If HIV infection is detected in workers of certain professions, industries, enterprises, institutions and organizations, the list of which is approved by the Government of the Russian Federation, these workers are subject, in accordance with the legislation of the Russian Federation, to transfer to another job that excludes conditions for the spread of HIV infection.

18. If an employee refuses to undergo a mandatory medical examination to detect HIV infection without good reason, he is subject to disciplinary liability in the prescribed manner.”

Why should a person who has become infected with HIV, no matter how, be transferred to a job that “prevents the spread of HIV infection”? What does “excluding conditions” mean? A job where she/he will not have contact with HIV infection? (What difference does it make, since the infection has already occurred?) Or where will she/he not infect others? (Who? HIV-infected patients or “materials containing human immunodeficiency virus”?).

Despite this inconsistency and vagueness of legislative language, two points are absolutely clear:

If you have HIV infection, you cannot be fired, you can only transfer to another job;
Only workers in clearly established professions, who also receive benefits due to hazardous working conditions, should take an HIV test upon entry to work and during routine medical examinations.
Apart from this limited number of employees, no one is required by law to undergo an HIV test at the request of an employer. Also, no one can be refused employment or fired from work on the basis of HIV status. Article 5 of the Federal Law “Guarantees of Observance of the Rights and Freedoms of HIV-Infected Persons” states: “The rights and freedoms of citizens of the Russian Federation may be limited in connection with the presence of HIV infection only by federal law.”

Federal Law “On preventing the spread in the Russian Federation of the disease caused by the human immunodeficiency virus (HIV infection).” Article 1(2).

“Federal laws and other regulatory legal acts, as well as laws and other regulatory legal acts of the constituent entities of the Russian Federation cannot reduce the guarantees provided for by this Federal Law.”

This means that no internal instructions or departmental regulations can serve as a legal basis for the dismissal of an employee with HIV infection if her or his specialty is not included in the government list cited above. However, the provisions of the Federal AIDS Law are systematically and with impunity violated by both public and private enterprises.

“I am a medical worker, HIV positive. I work at an ambulance station. Does my hospital have the right to fire me for this reason, despite the fact that I take exceptional precautions (hand sanitizer, use of gloves) while performing my direct medical duties? What should I be guided by (in terms of the regulatory framework), refusing to write a letter of resignation of my own free will, which the administration persistently demands from me?”