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full blown HIV/AIDS in the restaurant industry
Dec 31, 1998

I have been ordered to re-hire an employee that I had recently let go for failure to come to work. Three days after, the employee returned to work with his attorney and demanded his job back or threatened to go to the media and say that he was fired for having full-blown aids. The owner demanded that I, the GM rehire the employee. I would like to know what would be a good position to put him in without violating his rights and what are the legal issues.

Response from Ms. Breuer

You are in a truly uncomfortable situation. Let's address it in a way that could help you avoid ever being in this again. From your question, I assume that the employee's attendance problem was caused by his disability, but he did not identify himself as being covered by the ADA until after he was terminated, when he showed up with an attorney. That's pretty much the ideal description of the wrong way to handle being an employee with AIDS.

He should have identified himself to you as a person with a disability by giving you a treating health care provider's note requesting reasonable accommodation, in this case adequate time off to take care of medical appointments or to treat his condition. That note should not give the diagnosis, but should clearly state what the employee can and cannot do. Then the ball is in your court to determine whether the requested accommodation is reasonable. Every case is unique, so I can't tell you whether it would be reasonable. How many employees do the same job he does? Can others cover for him? Is there another job he can do that wouldn't have as much impact on your ability to do business? You need to decide that.

If you cannot accommodate the disability, then you need to talk with the employee about his options: state disability, private disability leave, finding a job that puts fewer demands on him, moving to part time work--those are his decisions.

Please know that the Americans with Disabilities Act is not the full employment act for people with AIDS. It clearly states that the disabled person must be able to fulfill the essential functions of the job, with or without reasonable accommodation. If the person cannot fulfill those essential functions, then you are fully justified in a termination if other options do not work out. But you need to try reasonably accommodating the disability first.

How to avoid this in the future? Make sure all employees in the business have HIV education, including their obligation to tell you if they have a disability. They don't have to tell you what it is, but they do have to tell you to trigger coverage under the ADA. Call the National AIDS Fund Workplace Resource Center to ask for a copy of the booklet "What About My Rights? Guidelines for Employers and Employees Living with HIV/AIDS" for a clear outline of the rights and responsibilities of both parties in this situation. I recommend that you obtain copies for your employees as well. (I wrote the booklet, with review by six HIV-specialist attorneys, but I do not earn a cent from its distribution through the NAF, so I can recommend it without any double motive.) Good luck, and write again, please, if you need more information.

Nancy Breuer



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