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Employee With AIDS Isn't Performing
Mar 23, 1998

I have a small business and have an employee with AIDS. His status is known by all and there has never been fear or discrimination. However, he has now used all his sick time, vacation, etc. and continues to call in sick or leave early without notice. I am trying to "do the right thing" but it appears to be having an adverse affect on others in the workplace, i.e. they resent his absence and the shift of workload. He has said he does not want to go out on disability, but his performance of late is sub standard and worthy of termination. How do I approach all of this with respect and without getting sued for attempting to "get rid of" someone with AIDS?

Response from Ms. Breuer

Your guide for what happens next is the Americans with Disabilities Act. It states clearly that the employee must be able to perform all of the "essential functions of the job, with or without reasonable accommodation." You do not mention the kind of work he does, so my suggestion is general: request information from his treating physician about any reasonable accommodation the physician can suggest that could make it possible for the employee to perform all of the essential functions of the job. The physician may not be knowledgeable about the range of accommodations, but should be able to tell you whether changing some aspect of how the employee does his job could improve performance. A resource you might want to check while you are corresponding (or speaking) with the physician is the Job Accommodation Network, which exists to help employers with just this kind of problem. JAN is at West Virginia University, 918 Chestnut Ridge Rd. Suite 1, P.O. Box 6080, Morgantown, WV 26506. Their number is 800-ADA-WORK.

If no accommodation enables the employee to perform the essential functions of his job, you have what boils down to two choices: offer another, less demanding job (or one that requires fewer hours) at the company, or move the employee onto disability leave. I can't tell whether you have a HR director or benefits specialist who could explain the disability leave policy to the employee, but be sure that he knows how flexible it is (I don't know your policy, so I cannot say) about trial periods of returning to work. Many people view disability leave as the preamble to death rather than as a tool to help them regain their strength, test new combinations of medications or participate in a clinical trial. Helping him to frame disability leave as a viable option is an important part of your (or your HR person's) job. Direct help with this is available to him through the National Association of People with AIDS, where he can find someone to talk to who knows disability leave from the inside and can help him see that there is life on disability leave. NAPWA is in Washington, D.C. at 202-898-0414.

Most companies who face problems with reasonable accommodation, in my experience, are those who seek to over-accommodate. Your instincts are really good, I believe, as you watch the impact this situation has on the rest of the work group. You are responsible for the entire group's productivity, and you may need to take steps that conflict with the employee's stated desire right now. Please write again if you have further questions. This is the hardest thing the employer of a person with AIDS sometimes has to do.

I'll defer to this site's legal advisor on avoidance of a wrongful termination suit. My only general advice would be to document all of the steps in the process, particularly exploring or trying reasonable accommodations, and provide the employee with resources to help him--emotionally and practically--through this very difficult time for him.

Nancy Breuer



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