employer's rights HIV/AIDS
May 21, 2004
My husband and I own a small company(less than 10 people) and we are having a difficult time finding information on employer's rights concerning an employee who has just disclosed to us that she has HIV. This employee told us Friday, called in sick Monday, came to work Tuesday with 2 tattoos and was bleeding all over her chair and other places in the workplace oozing with know proper bandages or treatment.(small sign company), and was making jokes about it. The other employees know about her condition from her, not us, and are concerned and worried. We use blades and cutting devices regularly. I am concerned and understand the employee's rights, etc, etc. My concern is being sued by another employee, or this employee taking advantage of a situation. She has a history of poor work performance and absenteeism in general. First, can I ask for a doctor's note if the calling in sick starts getting out of hand?(it already is).(When she called in sick and got tattoos?) She has already asked off two more days this week for doctor's visits. What should I do about her reckless regard for the other employees about her hygiene. She is not aware that all the employees now know. One of the employees told someone and all the sudden they all know( you know how that goes). How can I be held responsible for this? I have discussed the situation with these employees to an extent only because they are calling me asking me questions. When the "employees who supposedly don't know" are asking me questions and are worried and "threatening" through insinuations that I am not doing enough to protect them, can or should I even discuss this with them since they aren't supposed to know to begin with? Given the history of this employee, as horrible as this sounds, there is a possibility that she is lying about her HIV. Can I not ask for documentation before I run around crazy trying to protect myself and my employees? Sorry to sound not concerned, I am, but I am frustrated by the lack of info for employers to protect themselves in a time when the laws often leans toward the employee and employers are always worried about being sued. Any info would be appreciated as soon as possible!! Thanks.
Response from Ms. Breuer
Oh, I am so glad you wrote!
Your company size means that you are not required to comply with the Americans with Disabilities Act. However, its guidelines are very helpful, and following them would put you in a stronger legal position, in my opinion. (Please remember that I'm not a lawyer.) These are my recommendations:
First, you have the right to expect that this employee will perform all of the essential functions of her job up to your expectations. I hope you have documentation of her poor performance and absenteeism, and can substantiate that she has been counseled on these issues. If not, start now. She has the right to be treated as any other employee is treated with regard to performance expectations. And you must document the history of counseling her on them. If you do not have a history of documentation, start now at a relatively low level, but set clear expectations and identify anyplace where those expectations are not being met.
As to asking for a doctor's note when she is absent, I strongly recommend following only the procedure you would or do use for everyone else. If no one else has ever been asked for a note to substantiate absences, then include in a written follow-up to a counseling session with her the information that you will do that if the absences continue to happen, including requesting substantiation of her medical appointments. Do not ask for the diagnosis, ever. Seek to keep written information about the diagnosis out of your files completely. It doesn't matter what she has. What matters is how she performs on the job.
If her absenteeism is due to her HIV, she can approach you for a reasonable accommodation (for example, FMLA leave to adjust to new meds for a week), but she still must be able to perform all of the essential functions of her job if she expects to keep her job.
On to that disclosure question: unauthorized disclosure is the leading reason for lawsuits by HIV-positive employees against employers, and most often, the employee wins. Since you are not the source of the disclosure to others, and it was done by a co-worker whom the employee herself told, your only question is whether the co-worker would own up to having told others. Employers are liable for unauthorized disclosure, but co-workers are not. If the employee told one co-worker, in effect she told them all, and she has no recourse as I understand the law.
Now let's talk about blood. Your employees have the right to a safe workplace. NO ONE should be permitted to bleed on the furniture or leave oozing wounds uncovered. Get one of those bloodborne pathogens/universal precautions posters and post it. Since the other employees do know, I encourage you to act without hesitation to bring in workplace HIV/bloodborne pathogen education without identifying the immediate reason for it. If you'll tell me what city you are in or near, I may be able to recommend someone I have trained or know personally. As soon as you have booked that education, let everyone know that the training is coming and everyone will be expected to attend. Training is far less costly than lawsuits.
As long as you discuss workplace safety around blood with your employees and do not mention anyone by name, you can talk about it today. If pressed about one person's behavior, respond with comments about the standards that everyone must be held to. Avoid falling into the trap of discussing one employee's behavior in front of the others by universalizing what you say about how human blood will be handled in your workplace. Point to the nature of the work as the reason for your concern, and comment that human blood can contain a wide variety of pathogens, so everyone has to take the same precautions.
No one can prevent an employee from suing, but you can limit your liability by documenting the actions you take, requiring workplace HIV/bloodborne pathogen education, insisting that everyone follow universal precautions in responding to cuts or doing any first aid involving blood and being consistent in your performance evaluations. If the HIV-positive employee continues to turn in a substandard performance and/or refuses to comply with the workplace safety standards you have set, you have the responsiblity to terminate that person's employment just as you would anyone else's.
As to rumblings from the other employees, you have every reason to be concerned, especially because people do use sharp instruments in your work. While it is easy to focus on the identified risk, you don't know who else may have hepatitis B or C, so everyone needs to tighten up the standards on human blood. Give the identified employee a written note right away explaining that all bleeding cuts must be completely covered and any blood spilled or smeared on any surface must be cleaned up immediately with a fresh mixture of one part bleach to 8 parts water, or with a product you identify.
Please identify yourself when you write again by a couple of details, since your email address is blocked from my view when I receive your mail.
I will check back in a few hours to see if you have further questions, and will continue to check each day.
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