December 1, 2022

Natur family

Health Care

Is medical history protected by discrimination law?

Prepared by: Claeys & Engels

Belgium has expanded its Anti-Discrimination Act to include individuals’ ‘state of health’, which means their past health care historical past is now included.

Belgium has prohibited discrimination primarily based on an individual’s ‘current or long term condition of health’ considering the fact that 2007. On 7 July 2022, a monthly bill was passed which broadens this. The idea of ‘current or future state of health’ is replaced by ‘state of health’, this means that an individual’s previous point out of health is now also protected by the Anti-Discrimination Act.

Right before this amendment, the 2007 Anti-Discrimination Act only prohibited discrimination on the basis of ‘present or potential condition of health’. This implied that men and women could, in basic principle, be discriminated against on the basis of a earlier ailment from which they were now treated or in remission. For example, a particular person who had experienced cancer in the previous and was denied a task simply because the employer feared s/he would relapse was not secured.

The bill improvements this. An employer who discriminates on the foundation of an employee’s clinical background can now be ordered to pay back damages amounting to six months’ wage. The worker or candidate who feels discriminated from, for instance, for the duration of a job software or by his or her dismissal, only has to establish a presumption of discrimination. Scenario regulation normally takes into account the chronology of the points. It will then be up to the employer to confirm that the decision to dismiss or not to retain the services of was taken on non-discriminatory grounds.

Yet, this improve is not fully new. Both nationwide CBA no. 38 on the recruitment and collection of workers and nationwide CBA no. 95 on equivalent remedy through all phases of the work connection presently utilize the shielded criterion of ‘medical history’. Having said that, compared with the Anti-Discrimination Act, these collective bargaining agreements do not supply for compensation for the sufferer of discrimination.

Concretely, in the Anti-Discrimination Act, the words and phrases ‘current or long term point out of health’ will be changed by the phrase ‘state of health’, so that a previous state of wellbeing is also included. This will also put an end to the ambiguity that existed on this topic and the differing interpretations in circumstance regulation and authorized doctrine.

It is truly worth noting that a difference dependent on an individual’s state of health and fitness is not prohibited in all instances. As lengthy as the employer can justify the variance in treatment on the basis of a legit goal and demonstrate that the usually means of achieving that goal are essential, there is no discrimination.

Motion stage

As a result of an amendment to the Anti-Discrimination Act, it is now not only forbidden to discriminate on the foundation of an employee’s or candidate’s present-day or future point out of overall health, but also on the foundation of his or her professional medical record. An employer who are not able to justify discrimination based mostly on the state of health and fitness will deal with the danger of getting to pay payment of six months’ salary to the discrimination victim.