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Dealing With HIV/AIDS in the Workplace

Andrew J. Sherman, Partner, Dickstein Shapiro Morin and Oshinsky LLP

The human immunodeficiency virus (HIV), which causes acquired immunodeficiency syndrome (AIDS), has led to great concern in the workplace in recent years. The majority of people infected with HIV/AIDS are between the ages of 20 to 45 and are employed, many by small and mid-sized businesses. This raises questions regarding the measures an employer must take to accommodate these employees. Despite the ramifications of HIV/AIDS in the workplace, few companies have an established policy to guide their response to this issue. The award-winning film "Philadelphia" dramatized the plight of an attorney, played by Tom Hanks, whose services were terminated once it was discovered that he had AIDS.

Federal and State Legislation

At the federal level, there are two principal laws that protect individuals with HIV/AIDS. The first is the Rehabilitation Act and the second is the Americans with Disabilities Act. When making hiring or promotion decisions, you may not discriminate against an individual who is believed to be HIV/AIDS-infected. In a recent case that recalled "Philadelphia," a New York State administrative agency found that Baker & McKenzie (the world's largest law firm) discriminated against an associate attorney with AIDS when it terminated his employment, and awarded the associate's estate $500,000 in compensatory damages.

The ADA also prohibits discrimination in places of public accommodation. This means that businesses such as restaurants and hotels may not deny goods or services to a person believed to have HIV or AIDS.

Many states and local jurisdictions have passed laws similar to those on the federal level, prohibiting discrimination against people with disabilities. A majority of these laws also include people who have tested positive for HIV/AIDS within the definition of "disabled." For example, in Minnesota a dentist was found to have violated the state's Human Rights Act (similar to the ADA) for refusing to treat a patient who had tested positive for HIV.

HIV Testing as a Condition of Employment

Several states prohibit HIV/AIDS testing as a condition of employment, while others permit HIV/AIDS testing when the employer can show a legitimate reason for doing so. To establish a legitimate reason, there must be some connection between HIV/AIDS and job performance or safety. This connection may exist when the job involves a risk of transmitting the disease. An employer who tests for HIV/AIDS without a legitimate reason, or who does so merely because of suspicion that the employee is a homosexual or drug user, may be liable for an invasion-of-privacy claim by the job applicant.

Rights of Co-Workers

Certain federal laws allow employees to discontinue working when they have a reasonable belief that their working conditions are unsafe. Given the consensus in the medical field that HIV/AIDS cannot be transmitted through casual contact, it would be difficult for an employee to refuse on these grounds to work with an HIV/AIDS infected co-worker. The reasonableness of the employee's demand may depend on how the employer has educated employees about HIV/AIDS. If the employees have been taught that HIV/AIDS cannot be transmitted through casual contact, their refusal to work may be found to be "unreasonable" and they could be discharged.

Accommodations for HIV/AIDS Employees

Federal legislation not only prohibits discrimination against handicapped persons, but also requires employers to make reasonable efforts to accommodate handicapped applicants and employees where obstacles exist that would impede their employment opportunities. Insofar as an employee with HIV/AIDS is considered handicapped, an employer must make reasonable accommodations for him or her.

In addition, if your company is covered by the Rehabilitation Act and an employee has HIV/AIDS or develops it, you must make reasonable accommodations that permit the employee to continue working in the position. Such accommodations can include leave policies, flexible work schedules, reassignment to vacant positions and part-time employment. The criteria used to determine whether an employer is making reasonable accommodations for an HIV/AIDS-infected employee include the cost of the accommodation, the size of the business and the nature of the employee's work.

Guidelines to Consider

Through advance education and preparation, an employer can avoid many of the problems associated with employees infected with HIV. In 1987, the U.S. Surgeon General suggested that, when dealing with HIV issues, employers should:

  • adopt an up-to-date HIV/AIDS education program that discussed how HIV is transmitted and explains the company's policies regarding employees with HIV/AIDS;
  • treat HIV/AIDS infected employees in the same manner as other employees suffering from disabilities or illnesses are treated under company health plans and policies;
  • allow HIV/AIDS-infected employees to continue working as long as they are able to perform their jobs satisfactorily and their continued employment does not pose a safety threat to themselves, other employees, or customers;
  • make reasonable efforts to accommodate HIV/AIDS-infected employees by providing them with flexible work hours and assignments; and
  • protect all information regarding an HIV/AIDS-infected employee's condition.

There is a broad range of legal issues that companies must consider when formulating their practices and responses toward HIV/AIDS. By educating your employees, you may be able to reduce the work disruption, legal implications, financial implications and other effects that HIV/AIDS can have on your business. Given the complexity and changing nature of HIV/AIDS, an employer should always examine the laws applicable in its jurisdiction and consult an attorney when handling HIV/AIDS issues in the workplace.

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