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Firing someone who is HIV positive
Aug 6, 1997

One of the people who works for me recently told me he is HIV positive. Ironically the week before I had decided to fire him. Can I still do so? What are the possible consequences? Can he say that it had something to do with the illness even though I proof that I went to my supervisors with this descion a week previous to his disclosing????

Response from Ms. Breuer

You have several choices concerning your HIV-positive employee. I recommend that you ask the employee for a note from his treating physician explaining whether there are any reasonable accommodations that the employee needs to be able to fulfill the essential functions of the job. Whatever response you receive from this request, focus on the employee's performance. Can the employee perform the essential functions of the job, with or without an accommodation? Do you have adequate documentation to support a termination? Does your legal counsel agree that you have adequate documentation? Is it based on performance issues? If it is based on attendance rather than performance, then you may need to invest more time with the employee to see whether the attendance problems are solved by a reasonable accommodation. By going through that period, you would, in my opinion, fulfill your obligation to determine whether the problems are HIV-related or not. Since you have proof (written, I assume) that you went to your supervisors with the decision a week before the disclosure, in my opinion you are in a strong position to proceed.

-- Nancy Breuer


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