The Second Chamber of the Supreme Court of Justice of the Nation, considered that although it is discriminatory that the Mexican Social Security Institute, establish as a requirement for the hiring of medical personnel the application of HIV / AIDS tests, it endorses that they carry out examinations of this type to their medical staff, as long as these are not conditioning factors for their hiring.
Court rejects IMSS request to carry out HIV test for hiring purposes
When denying an Amparo to the IMSS, Minister Alberto Pérez Dayán considered that it is discriminatory that social security establishes, as a requisite for hiring medical personnel, the application of HIV / AIDS tests. This, for three basic reasons. The first, because requiring the HIV test as a requisite to access medical work violates the right to equality since it would deny employment to the person, simply because of their health condition, which is prohibited by Article 1 of Mexicos Constitution.
Second, because the practice of HIV / AIDS testing for applicants is not necessary to protect the health of other people, because if they are not yet part of the medical staff, then the invasion of the applicants' privacy is not justified since At that time there is no risk for workers or patients.
And finally because protecting the right to health in any way would be met with the possibility of conducting the HIV / AIDS test once the person has been hired, as this allows health institutions to take the necessary measures so that the HIV of the worker does not generate affectations in the patients or the own personnel.
HIV / AIDS tests after hiring approved
However, the minister explains that it is permissible for the IMSS or other health institutions to carry out HIV / AIDS tests on medical personnel, as long as they are carried out after the hiring of the health professional and they comply with the law. the obligations established in an Official Mexican Standard called "NOM-010-SSA2-1993".
Therefore, it says that the examinations must be carried out after the hiring with the sole purpose of implementing the security measures or protocols necessary to avoid that the HIV of the medical worker is not a risk to the health of the patients or of the medical personnel (for example, limiting the possibility of practicing surgeries or other risk procedures, when necessary to protect the patient).
Likewise, it should not lead to dismissal of the worker, since the HIV test should only be practiced in specialties, medical areas or activities in which there is a reasonable and objective risk of infection to staff or patients, in accordance with the nature of the respective medical work.
Warns that the results of the examinations should not be published and may only be known to the persons and workers who, strictly, are responsible or co-responsible for the application of the necessary measures for the protection of the health of the medical personnel and patients.