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HIV AND EEO
Sep 11, 1998

HOW CAN I TREAT AN EMPLOYEE BEING HIV POSSITIVE IN TERMS OF EQUAL EMPLOYMENT OPPORTUNITIES?

Response from Ms. Breuer

HIV is a disability covered by the Americans with Disabilities Act (ADA). An employer is not permitted to discriminate against a person with HIV on the basis of disability in application, hiring or any aspect or benefit of employment. Further an employer is required to provide an employee with a disability reasonable accommodation--that is, some change in the employee's job environment or structure--to accommodate the disability as long as the individual is still able to perform the essential functions of the job and the accommodation does not cause the employer undue hardship. (Undue hardship is generally determined by a financial calculation of the cost of the accommodation and the effect of that cost on the employer--therefore big employers have to do more than small ones.)

The only defense to refusing to hire or terminating an employee on the basis of being HIV-positive is that the employee poses a direct threat to the health or safety of others. Direct threat means a significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.

Factors which must be considered are (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) likelihood that the potential harm will occur; and (4) imminence of the potential harm. Regulations specifically say that there is no direct threat of transmission from a person with HIV employed as a food handler. Occupations where there has been found to be a direct threat of transmission include medical workers who perform invasive medical procedures, such as surgery, or other medical workers who have contact with body tissue. In sum, unless there is a direct threat of transmission of the virus in your workplace, you should treat an applicant or employee with HIV like any other, and provide reasonable accommodation that does not cause your company undue hardship, if the employee requests it.

Mary Sylla, HALSA


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