Mexico: Supreme Court of Justice rules that HIV/AIDS testing for health employees as a requirement for recruiting is discriminatory

The Second Chamber of the Supreme Court of Justice (SCJN) determined that HIV/AIDS testing for the Mexican Institute of Social Security (IMSS)’s employees as a requirement for recruitment is discriminatory.

According to the sentence issued in the appeal proceeding (amparo directo) 438/2019, Second Chamber of the SCJN considered that HIV/AIDS testing by IMSS and other health institutions is allowed after recruiting the health professional and Mexican Official Standard NOM-010-SSA2-1993 must be complied with. This means that HIV/AIDS tests practiced by health institutions to medical doctors, must fulfill the following:

1. They should never be practiced before recruitment.
2. They should not give grounds to dismiss the employee.
3. They can only be practiced in specialties, medical areas or activities in which, in effect, there is a reasonable and objective risk of infection to staff or patients, according to the nature of the respective medical work and in general, not individualized.
4. The results of the HIV/AIDS tests should not be published and may only be disclosed to people or workers who, strictly speaking, are responsible of implementing the necessary measures for the protection of the health of medical staff and patients.