Beyond Decriminalization: Sex-work, Human Rights and a New ...

BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law ReformA. Police and nurses, and medical people. Aren’t they covered for catching HIV?A. HIV should be in the statute.A. I think it should be.Since blood-borne illnesses are not formally recognized under schedule B, workers in other industriessuch as paramedics and physicians who are exposed to these pathogens and file a worker’s compensationclaim – are currently left to the interpretations made by Board adjudicators on a case-by-casebasis. According to the guiding provisions of the Board’s Rehabilitation Claims Services Manual (the“RCSM”), 45 the authority granted to the Board under s. 6(4.1)(b) gives it “substantial flexibility in itsdesignation or recognition of an occupational disease other than by listing it in Schedule B.” 46Transmission of HIV/AIDS is extremely rare in lawful occupational settings in Canada. Forexample, as of 2001, there had only been two probable cases of transmission of HIV to laboratoryworkers while on the job, and one case of transmission to a health care worker on the job. 47 Whilethere is little Canadian case law surrounding this issue, the Association of Workers’ CompensationBoards of Canada reported seven cases in 1998 of compensated lost time due to occupational HIVinfection or suspected infection. 48 While all of these cases involved health care professionals, theyestablish that HIV/AIDS has been recognized as an occupationally transmitted disease, and suchrecognition could be extended to prostitution. Sex workers recommended HIV/AIDS be added to thelist of compensable diseases in Schedule B.There are also problematic issues of proof to consider. In their determination of a claim, Boardadjudicators will assess whether the occupational exposure satisfies the requirements necessary to bedefined as an occupational disease (RCSM #13.10). 49 RCSM #25 states that HIV/AIDS and othersexually transmitted diseases should be covered when they are contracted on the job. In adjudicatingclaims, “determining the extent to which a worker’s employment had in producing the diseasebecomes a critical or central issue.” 50 The difficulty of proving such a claim will be discussed under“Evidentiary Issues” below.In terms of what is specifically covered under the WCA, compensation can include lost wages andhealth care expenses, such as medical care and medications, 51 for injuries sustained in the course ofemployment. In the context of HIV and Hepatitis infection, this could mean that workers’ compensationwould cover post-exposure prophylaxis (PEP) drugs in the event of accidental exposure. PEPdrugs can help reduce the risk of disease transmission where a worker has been exposed to eitherHepatitis B or HIV, if taken shortly after the exposure. Under RCSM#32.60 Board pays for reasonablehealth care benefits, and the manual cites the example of covering drugs to reduce the risk ofcontracting blood borne illness in the instance of “a lab technician who in the course of employmentcuts a finger on the sharp edge of a broken specimen bottle.” This interpretation suggests that theBoard could extend the same drug coverage to prostitution.Regarding HIV and other sexually transmitted diseases that do not physically prevent sex workersfrom working, under s. 6(1)(b) of the WCA, “a health care benefit may be paid although the worker45 B.C., Rehabilitation Claims Services Manual, vol. 2 (B.C. Workers Compensation Board, 2002) [RCSM].46 Ibid., at 4-4.47 “Testing of Persons Believed to be the Source of an Occupational Exposure to HBV, HCV, or HIV: A Backgrounder,” online:HIV/AIDS Legal Network .48 Canada, Canada Communicable Disease Report, vol. 28S1 (Ottawa. Health Canada, 2002) at 166, online: as reported in the Association of Workers’ Compensation Boards of Canada. Nationalwork injury statistics program — 1998 (Toronto, 2000).49 RSCM, supra note 45 at 3-1: The following are examples of disorders classified as DISEASES: an infection (except when it is incidentalto a compensable injury, when it is treated as part of the injury) and contagious diseases. Only diseases which are occupationaldiseases are compensable.50 RCSM, supra note 45 at 4-1.51 WCA, supra note 6, s. 21(1).113