NHRC Issues Recommendation to MOGAHA to Amend Regulations for Hiring-Related Medical Examination
The National Human Rights Commission (NHRC) issued a recommendation to the Minister of Government Administration and Home Affairs to amend or rescind relevant articles of the “Regulation on Medical Examinations for Government New Hires” (hereafter, “Medical Exam Regulation”) that violate articles 11 and 15 of the Korean Constitution by violating the right of equality and the right to free choice of occupation for hepatitis B carriers. The provision in question—article 3: clause 2 of the Medical Exam Regulation—stipulates that candidates’ medical reports include “hepatitis screening” results and require that one fill out “whether preventative hepatitis vaccination is necessary.”
The NHRC investigation found that article 10 of the current enforcement decree for appointing government officials stipulates: (1) that medical exams must be performed for all new government employees when they are hired; (2) that the medical exam includes screening for hepatitis; (3) that the same exam also requires that one indicate whether preventative hepatitis vaccination is necessary.
The NHRC noted that “hepatitis screening” in Korea generally means screening for the hepatitis B virus, and that the medical exam results summary form requires filling out a hepatitis screening item separately from another question specifying liver disease testing. In medical terms, “liver disease” already includes hepatitis; thus, a separate screening for hepatitis would be carried out with the aim of making a distinction for hepatitis B. Furthermore, currently in Korea, the only hepatitis for which it is possible to be vaccinated is hepatitis B. Thus, the medical exam report item requiring that there be indication as to whether preventative vaccination is necessary also aims to single out persons with antigens to hepatitis B.
While hepatitis B is a disease that can be transmitted prenatally from mother to fetus, or through sexual contact or blood transfusion, it is not a disease that is transmitted through ordinary work life. Furthermore, were it to be known throughout the workplace that a person was a carrier of hepatitis B, that person may be subject to discrimination on a daily basis, owing to the lack of accurate understanding on the part of potentially ill-informed colleagues as to the exact nature of transmittal. Thus, one could say that it would be illogical if not inappropriate to undertake hepatitis B testing for new government appointees based on concerns about the possibility of spreading disease. Even supposing that the appointee had contracted hepatitis B, that in itself would not necessarily mean that his or her condition would deteriorate and impair work ability by developing into chronic hepatitis or liver cirrhosis since such cases are rare.
Thus, the NHRC found that indiscriminately making the success or failure of a person’s eligibility to work depend on a piece of medical history unrelated to their job qualifications constituted discrimination on the basis of medical history (for reference, in the United States, the Americans with Disabilities Act prohibits pre-hiring medical examinations.)
Article 1 of the Medical Exam Regulation states that the purpose of the examination is to determine whether a person’s physical abilities would allow them to perform their job duties, that is, to assess if they are adequate to specific job-related tasks. Thus, the medical exam is the testing procedure to determine whether the person in question can competently handle job duties without undue harm to him- or herself nor negatively impact the health of his or her colleagues. From this perspective, it is unreasonable for the medical exam to be testing for hepatitis or requiring the filling out of items as to whether or not the person would need vaccination.
On the one hand, the Ministry of Government Administration and Home Affairs (MOGAHA) has released guidelines—based on the Enforcement Rules for Preventing Spread of Contagious Disease (amended in 2000)—explicitly forbidding government organs from rejecting candidates solely on the basis of whether or not they are hepatitis B carriers. This is tantamount to a MOGAHA acknowledgement that such hepatitis B testing is not necessary for such hiring-related medical exams.
This NHRC recommendation to revise (delete) the related provisions from the regulations for new government appointees that specify reporting items is just the first step. Before the year passes, the NHRC will have carefully examined the overall situation of medical exam systems for hiring, and the NHRC plans to make further recommendations as to measures to take when it discovers machinery that potentially leads to the unreasonable restriction of citizens’ right to equality.
