From: Safety & Health
AIDS and HIV in the Workplace
With an increase in the number of employees contracting acquired immune deficiency syndrome (AIDS), AIDS-related complex, or human immunodeficiency virus (HIV), employers, assisted by federal law, must implement AIDS policies to ensure reasonable care is exercised toward employees in the workplace. The following material addresses AIDS-related issues, such as testing, employment, protection by law, health insurance, and confidentiality.
AIDS as a Disability
The principal laws applicable to AIDS in the workplace are those prohibiting handicap and disability discrimination, including state antidiscrimination laws.
Employees infected with AIDS and HIV (the virus that causes AIDS) are employees with a disability whose rights are protected by the American with Disabilities Act (ADA), the Rehabilitation Act, and state discrimination laws. Recently, the Supreme Court ruled that asymptomatic HIV is a disability because it substantially limits a major life activity. In addition, employers should be aware asymptomatic HIV could constitute a perceived disability.
Pre-Employment Inquiries
Generally, employers are not permitted to make pre-employment inquiries that are likely to elicit information about a disability, including AIDS or HIV. Employers may, however, inquire into a job applicant’s ability to perform any and all specific job functions, as long as these questions are not directed towards a particular disability.
If an applicant voluntarily discloses that the applicant has AIDS or HIV, an employer may ask whether the applicant needs reasonable accommodation and, if so, the type of accommodation needed. An applicant is not required to disclose reasonable accommodations that may be needed in the distant future.
Physical/Medical Examinations
An employer may not test for AIDS or HIV before offering a job to an applicant. After a job offer, an employer may require a medical examination as long as all employees in the same job category are subjected to the examination and medical information is kept confidential. However, if the employer withdraws a job offer because the post-offer medical examination or inquiry reveals a disability, the reason(s) for not hiring must be job related and consistent with business necessity. Having HIV alone can almost never be the basis for a refusal to hire after a post-offer medical examination. After employment begins, any medical examination, other than routine wellness checkups, must be job related and consistent with business necessity. Employers may conduct employee medical examinations where there is evidence of a job performance or safety problem, when examinations are required by other federal laws, and/or when examinations are necessary to determine current fitness to perform a particular job. For example, an employer could not ask an employee who had recently lost a significant amount of weight, but whose job performance had not changed in any way, whether the employee had HIV or AIDS. An employer could, however, require an employee who was experiencing frequent dizzy spells, and whose work was suffering as a result, to undergo a medical examination.
An example of employment discrimination against persons with AIDS or HIV would include an employer that extended an offer to a job applicant and then rescinded the offer when, after the applicant took an HIV test as part of the employer’s required medical examination, the applicant tested positive for HIV.
Additionally, the Equal Employment Opportunity Commission (EEOC) regulations specify that employers may not require an HIV test just because an employee looks sick, misses work, or uses more sick leave than other employees use.
Policy Statements on Risk of Transmission of AIDS or HIV
Current medical opinion is that there is no risk of contracting AIDS or HIV through normal daily contact with infected persons in the workplace. For example, the Center for Disease Control and Prevention (CDC) estimates that even between a surgeon and a patient the risk of transferring the HIV virus during surgery is between 1 to 41,600 and 1 to 416,000. Likewise, a study published in the Annals of Internal Medicine calculated the risk of transmission of the HIV virus during professional football games as less than 1 in 85 million. By comparison, airplane passengers risk death in 1 out of 1.6 million flights.
The CDC has also determined that AIDS or HIV is not a disease that can be transmitted through the handling of food. The CDC has issued guidelines that persons with AIDS or HIV cannot be barred or restricted from using office equipment, telephones, toilets, mowers, cafeterias, or water fountains.
Protection for Applicants and Employees with HIV or AIDS Under the ADA
With these statistics and policy statements in mind, employees or applicants for employment who have AIDS or HIV and are qualified for the position are protected from discrimination on the basis of their disability. An employee is qualified if the individual can perform the essential functions of the job with or without reasonable accommodation. Under the ADA and the Rehabilitation Act, an employee is not qualified if the individual poses a direct threat to the health or safety of others that cannot be eliminated by reasonable accommodation.
Courts
The Supreme Court has defined direct threat to involve a significant risk of harm and has proposed several of the following factors to consider in assessing whether an employee poses a direct threat:
- The nature of the risk (how the disease is transmitted).
- The duration of the risk (how long the carrier is infectious).
- The severity of the risk (what the potential harm is to third parties).
- The probability the disease will be transmitted and cause varying degrees of harm.
Analysis of AIDS and HIV is unique and often difficult because the probability of transmission is slight, yet the nature of the risk, duration of the risk, and the severity of the risk are great. Even so, courts have allowed employers to consider AIDS or HIV in making employment decisions only in limited situations, such as certain health care providers or public safety professionals whose job duties expose members of the public to greater risk of transmission. Courts have not been receptive to broad rules excluding persons with AIDS or HIV from particular types or categories of jobs. Thus, employers must make a case-by-case determination whether a particular employee or applicant poses a significant risk of transmitting AIDS or HIV to others. A mere diagnosis of AIDS or HIV infection is not sufficient for this purpose.
Department of Justice
According to the U.S. Department of Justice, Civil Rights Division, Disability Rights Section, the ADA permits employers to establish qualification standards that will exclude individuals who pose a direct threat, a significant risk of substantial harm, to the health or safety of the individual themselves or to the safety of others, if that risk cannot be eliminated or reduced below the level of a direct threat by reasonable accommodation. However, an employer may not simply assume that a threat exists; the employer must establish through objective, medically-supportable methods that there is a significant risk that substantial harm could occur in the workplace. By requiring employers to make individualized judgments based on reliable medical or other objective evidence, rather than on generalizations, ignorance, fear, patronizing attitudes, or stereotypes, the ADA recognizes the need to balance the interests of people with disabilities against the legitimate interests of employers in maintaining a safe workplace.
Transmission of HIV will rarely be a legitimate direct threat issue. It is medically established that HIV can only be transmitted by sexual contact with an infected individual, exposure to infected blood or blood products, or perinatally from an infected mother to infant during pregnancy, birth, or breastfeeding. HIV cannot be transmitted by casual contact. Thus, there is little possibility that HIV could ever be transmitted in the workplace. For example:
- A restaurant owner may believe that there is a risk of employing an individual with HIV as a cook, waiter or waitress, or dishwasher, because the employee might transmit HIV through the handling of food. However, HIV and AIDS are specifically not included on the Centers for Disease Control and Prevention (CDC) list of infectious and communicable diseases that are transmitted through the handling of food. Thus, no direct threat exists in this context.
- An employer may believe that an emergency medical technician (EMT) with HIV may pose a risk to others when performing mouth-to-mouth resuscitation. However, the use of universal precautions among emergency responders means that the EMT will be using a barrier device while performing resuscitation.
However, having HIV or AIDS might impair an individual’s ability to perform certain functions of a job, thus causing the individual to pose a direct threat to the health or safety of the individual or others. For example:
- A worker with HIV who operates heavy machinery and who has been experiencing unpredictable dizzy spells caused by a new medication he is taking might pose a direct threat to his safety or the safety of another. If no reasonable accommodation is available (for example, an open position to which the employee could be reassigned), the employer would likely not violate the ADA if it removed the employee from the position until a physician certified that it was safe for the employee to return to the job.
Importantly, the direct threat assessment must be an individualized assessment. Any blanket exclusion, for example, refusing to hire persons with HIV or AIDS because of a perceived risk, would violate the ADA as a matter of law. The Disability Rights Section additionally provides the following as examples of employment discrimination against persons with HIV or AIDS:
- An automobile manufacturing company that had a blanket policy of refusing to hire anyone with HIV or AIDS.
- An airline that extended an offer to a job applicant and then rescinded the offer after the employer discovered (during the post-offer physical) that the applicant had HIV.
- A restaurant that fired a waitress after learning that the waitress had HIV.
- A university that fired a physical education instructor after learning that the instructor’s boyfriend had AIDS.
- A county tax assessment office that cancelled training opportunities for an accountant following her disclosure that she had HIV.
- A retail store that generally rotated all sales associates between the sales floor (where they could earn commissions) and the stock room (where they processed merchandise) except for the sales associate who was rumored to have HIV, who was never rotated to the floor.
- A call center employee who was denied a promotion to shift manager because his employer believed the employee would be unreliable since he had AIDS.
- A company that contracted with an insurance company that had a cap on health insurance benefits provided to employees for HIV-related complications, but not on other health insurance benefits.
Reasonable Accommodation
If an employee with AIDS or HIV cannot perform the essential functions of the job or is not otherwise qualified for the job because of AIDS or HIV, the employer must consider whether any reasonable accommodation would enable the employee to perform the essential functions of the job. Reasonable accommodation does not require the employer to take on undue financial or administrative burdens, nor does it generally require an employer to significantly restructure the job to allow the employee to continue working. Additionally, an employer is only required to accommodate a known disability of an employee. It is the employee’s responsibility to notify the employer of the need for reasonable accommodation.
Reasonable accommodation may include, but is not limited to, the following:
- Making existing facilities used by employees readily accessible and usable by persons with disabilities.
- Job restructuring, modifying work schedules, or reassignment to a vacant position.
- Acquiring or modifying equipment or devices or adjusting or modifying examinations, training materials, or policies.
Some examples of employer-provided reasonable accommodation from the Disability Rights Section are as follows:
- An accountant with HIV who had no available sick leave required two hours off, monthly, for visits to his doctor. He was permitted to take longer lunch breaks and to make up the time by working later on those days.
- A supermarket check-out clerk with AIDS had difficulty standing for long periods of time. Her employer provided her with a stool so that she could sit down at the cash register when necessary.
- A secretary with AIDS needed to take rest breaks at irregular intervals during her work day. Her boss allowed her to take the breaks as needed throughout the day, so long as she completed her work before going home each evening.
- A machine operator required time off from work during his hospitalization with AIDS-related pneumonia. He had already used up all his sick leave. His employer allowed him to take leave without pay.
- A computer programmer with HIV had bouts of nausea caused by his medication. His employer allowed him to work at home on those days that he found it too difficult to come into the office for the month it took him to adjust to his medication.
- A newspaper editor with HIV who tired easily from walking began to use an electric scooter. His employer installed a ramp at the entrance to the building in which the editor worked so that the editor could use his scooter at the office.
Health Insurance Benefits
The ADA prohibits employers from discriminating on the basis of disability in the provision of health insurance to their employees and/or from entering into contracts with health insurance companies that discriminate on the basis of disability. Insurance distinctions that are not based on disability, however, and that are applied equally to all insured employees, do not discriminate on the basis of disability and do not violate the ADA. For example, blanket pre-existing condition clauses that exclude from the coverage of a health insurance plan the treatment of all physical conditions that predate an individual’s eligibility for benefits are not distinctions based on disability and do not violate the ADA. A pre-existing condition clause that excluded only the treatment of HIV-related conditions, however, is a disability-based distinction and would likely violate the ADA.
Similarly, a health insurance plan that capped benefits for the treatment of all physical conditions at $50,000 per year does not make disability-based distinctions and does not violate the ADA. A plan that capped benefits for the treatment of all physical conditions, except HIV or AIDS, at $50,000 per year, and capped the treatment for AIDS-related conditions at $10,000 per year, does distinguish on the basis of disability and likely violates the ADA.
Confidentiality
The release of information about employees with AIDS or HIV or those who are suspected of having AIDS and HIV can have serious social and financial repercussions. The ADA requires that records relating to disabilities and accommodations be confidential. Additionally, medical information must be kept in separate medical files, not the employee’s regular personnel file.
Medical information may not be released except for the following limited exceptions:
- Supervisors and managers may be told about necessary restrictions or accommodations.
- First aid and safety personnel may be told if the disability might require emergency treatment.
- Government officials investigating compliance with the ADA must be provided with requested information.
- State workers’ compensation offices, state second injury funds, or workers’ compensation insurance carriers in accordance with state workers’ compensation laws may have access.
- Information may be required for insurance purposes.
Employers must establish a policy or statement regarding the confidential nature of the information and enforce disciplinary measures for the unauthorized release of such information. AIDS- and HIV-infected individuals and those falsely suspected of infection may recover damages under the ADA, state disability laws, and other common law for the unauthorized release of such information.
Health Insurance Portability and Accountability Act
The Health Insurance Portability and Accountability Act (HIPAA) offers protection to employees with AIDS or HIV by addressing some of the barriers to health care coverage.
Three main goals of HIPAA are as follows:
- To provide persons with group coverage new protections from discriminatory treatment.
- To enable small employers to obtain and keep health insurance coverage more easily.
- To give persons losing/leaving group coverage options for obtaining individual coverage.
HIPAA provides several protections to people with AIDS or HIV. The act limits, without eliminating, the use of pre-existing condition exclusions and prohibits group health plans from discriminating by denying coverage or charging additional fees for coverage based on an employee’s family member’s past or present poor health.
The act guarantees certain small employers, and certain individuals who lose job-related coverage, the right to purchase individual health insurance. The act also guarantees that employers or individuals who purchase health insurance can renew the coverage regardless of any health conditions of individuals covered under the insurance policy.
Occupational and Health/Workplace Safety
Both federal and state health and safety statutes regulate bloodborne pathogens and infectious disease. All employers, including those with employees unaffected by AIDS or HIV, should take care to implement and administer the necessary policies to avoid liability.
Employers should work with employees to ensure that they understand the policies and the risks of improper handling of bodily fluids or contaminated materials.
For example, the Occupational Safety and Health Administration (OSHA) released bloodborne pathogen standards for employees in hospitals, health care facilities, nursing homes, and research laboratories. The standards require employers to develop a written exposure control plan, establish a vaccination plan (where applicable), provide employees with hazard information and training, maintain medical records surrounding exposure incidents, and implement certain work practice controls.
Family and Medical Leave Act
The Family and Medical Leave Act (FMLA) applies to covered employers with 50 or more employees. Eligible employees may take leave for serious health conditions or to provide care for an immediate family member with a serious health condition, including AIDS or HIV. Eligible employees are entitled to a total of 12 weeks of job-protected, unpaid leave during any 12-month period. The employer must continue to provide existing health benefits during this period and restore the employee to the position upon return from leave.
To receive FMLA leave, individuals must inform the employer of the illness by disclosing the relevant medical information to the employer. Employers are not required to provide FMLA leave without such information and notice that a disability or serious illness exists. Any documents relating to FMLA leave or the need for FMLA leave must be treated as confidential.
Considerations for Employers When Drafting AIDS Policy
To facilitate stability and harmony in the workplace, employers should consider adopting policies to address the treatment of persons with AIDS or HIV and to educate their workforce about AIDS and HIV. Employers should ensure they have effective and coordinated policies to address the ADA, FMLA, and the Occupational Safety and Health Act (OSH Act).
In drafting these policies, an employer should consider the following factors:
- Educating decision-makers about HIV and AIDS to ensure decisions are based on medical facts.
- Centralizing the decision-making function to promote greater uniformity and consistency in implementation.
- Providing guidance and directives addressing the maintenance of health and benefits information.
- Issuing strict guidelines regarding the confidential nature of such information.
- Establishing methods for handling AIDS-related concerns in the workplace.
Employers may wish to supplement these policies with educational programs, counseling, and outreach programs to encourage employees with AIDS or HIV to be comfortable with their status in the workplace and to assist managers, supervisors, and other employees in understanding and accommodating co-workers with HIV or AIDS.
Enforcement
An applicant or employee who believes that they have been subjected to discrimination on the basis of having HIV or AIDS may file a charge with the EEOC. The charge must be filed within 180 days of when the discrimination occurred. The EEOC will investigate the charge and either act (on its own or through a referral of the charge to the appropriate government agency) to correct the problem or give the employee a right to sue letter. The right to sue letter permits the employee to sue the employer directly. The employee may be entitled to the job or promotion they were denied, a reasonable accommodation that was denied, back pay, benefits, or other damages.
Frequently Asked Questions
| Q | Are employees with AIDS protected by laws prohibiting disability discrimination? |
| A | Yes. AIDS and HIV, the virus that causes AIDS, may qualify as disabilities under applicable state law, and are protected under federal law through the EEOC, the ADA, and the Rehabilitation Act. |
| Q | Since employees with AIDS are protected by laws prohibiting discrimination, does that mean terminating an employee who has AIDS exposes an employer to liability? |
| A | Not exactly. An employer may not terminate an employee with AIDS on the basis of the disability, merely because of AIDS. However, an employee with AIDS may be terminated for one of the following reasons:
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| Q | What is a reasonable accommodation? |
| A | The nature of the accommodation depends on the employee’s condition and the work environment. Under the ADA, it is the employee’s responsibility to request the accommodation, and then the employer must discuss possible accommodations with the employee. An employer has no obligation to provide an accommodation if to do so would cause undue financial or administrative burdens. |
Contact Information
ADA – Fighting Discrimination Against People with AIDS
www.ada.gov/aids
Centers for Disease Control and Prevention
www.cdc.gov
Department of Health and Human Services
www.hhs.gov
Equal Employment Opportunity Commission
www.eeoc.gov
Job Accommodation Network
www.jan.wvu.edu
Occupational Safety and Health Administration
www.osha.gov
