When an employee discloses HIV disease, or is believed to have HIV disease, the employee, managers and co-workers often wonder, "What happens now? What about my rights? What are my responsibilities?" When an employee has HIV/AIDS, everyone has rights and responsibilities. This guide provides information that allows everyone to function productively in a workplace that is free of fear and discrimination.
Note: In this text, the term "HIV disease" encompasses all stages of HIV infection, including AIDS.
Because the highest concentration of cases of AIDS in the United States is among people in their 20s, 30s and 40s, every employer faces HIV as a workplace issue in some way: the person with HIV disease could be a vendor, a client, an owner, a customer, or an employee. Our businesses serve and employ people with HIV disease. These relationships imply both rights and responsibilities.
|The notion that the relationships among HIV-infected employees, their employers and their co-workers must be adversarial is unnecessarily pessimistic. Clear, honest dialogue based on facts and the law allows these relationships to be healthy and mutually beneficial.|
Business experience demonstrates that employees with HIV disease can continue to be productive, contributing members of the workforce in a supportive workplace. Employee and management HIV training and a sound HIV policy can prevent disrupted productivity and discrimination. Misunderstandings, interruptions in productivity and even lawsuits can result when HIV-infected colleagues are viewed as having only rights and managers as having only responsibilities. Employees and employers have both responsibilities and rights. Based on the laws governing the employment of people with disabilities and the experience of businesses that have managed cases of HIV disease well, these guidelines offer a map for the territory of HIV in the workplace. They describe best practices and sound policy, based on experiences in workplaces of all sizes.
Implement reliable HIV/AIDS training. Most Americans have acquired a patchwork of fact, myth and rumor about HIV from years of headlines and sound bites. Just as you would not rely on a similar patchwork of ideas to govern employees' behavior in sexual harassment situations, it would not be in your best interest to allow it to inform their behavior around HIV disease, which is still so widely misunderstood. Your long-term and short-term responsibility to all your employees is to provide education about how HIV is and is not transmitted, even if such training is not required in your industry or area. All decisions about health and safety precautions must reflect a clear, thorough understanding of how HIV is transmitted and prevented. Reliable, effective workplace HIV/AIDS training:
"I understand that medical information is confidential, but don't I have a duty to warn employees and customers?"
Be very cautious before concluding that you must violate an employee's medical privacy. No, there is no duty to warn others. Co-workers and customers have no right to know an employee's status in the normal course of business because normal business relations do not transmit HIV. Remember, HIV is bloodborne, not airborne. Your responsibility to other employees is to provide reliable HIV education so that they understand how HIV is and is not transmitted, and how to use universal precautions. Only having unprotected sex at work or sharing needles at work could put co-workers at risk -- and these behaviors already are prohibited at work.
"One of my employees who has disclosed HIV infection to me is dating someone who works here. Don't I have a duty to warn the other person?"
Partner notification is not the employer's right or responsibility. States vary in their partner notification practices. In general, partner notification -- advising any sexual partner or needle-sharing partner of an individual's HIV status -- is the responsibility of the HIV-infected individual. If you believe that employees are having sex or sharing needles with each other, consult with your local health department, and do not disclose the names to the health department until they advise you to do so. Do not warn any other party yourself. Even if you believe that another of your employees is engaging in one or both of these activities with the employee known or believed to have HIV infection, you should not disclose the employee's medical information yourself. You can provide company-wide HIV prevention education and stress the importance of HIV testing.
"Someone here with HIV disease is going to bankrupt my medical plan. Can I alter my benefit plan to limit coverage for HIV disease?"
Do not discriminate in benefit plans for employees. There is no reason to make sudden changes in your insurance coverage to protect the company's assets. A well-managed case of HIV disease is no more costly than most forms of cancer and much less costly than premature birth or paraplegia resulting from an accident. If the employee has a pre-existing condition excluded under your health insurance contract, you may deny coverage for that condition for the period of the exclusion. That period should be consistent for all pre-existing conditions, so the exclusion period for HIV infection cannot be longer than, for example, the exclusion period for cancer. You invite a lawsuit if you make a disability-based distinction that excludes or substantially reduces all coverage for HIV disease.
Inform the employer that you have a disabling condition if you require reasonable accommodation. Your employer needs to know that you are disabled if you are requesting reasonable accommodation from your employer. However, your employer does not necessarily need to know the nature of your disability. You can begin the process by saying simply, "I have a disability and it's causing me problems doing my job," or perhaps by providing a note from the treating health care provider. If you need a reasonable accommodation, ask your health care provider to give your employer a written description of your functional limitations. The note must specify that the limitations are the result of a physical impairment. The letter need not state your diagnosis. This may be sufficient for your employer. If it is not, the employer has a right to demand the diagnosis, but then incurs a legal obligation to keep your diagnosis confidential.
Treat all human blood as if it is infectious. You are responsible for protecting yourself from exposure to bloodborne pathogens in handling blood spills or workplace accidents. Your employer is under no obligation to inform you when one of your co-workers has HIV disease. Your employer is obligated to maintain confidentiality of every employee's medical information. Your protection from exposure is your own behavior, including using universal precautions in first aid. Universal precautions in first aid include always using a barrier between yourself and human blood, and treating all blood as if it is infectious.
Whatever your personal feelings about HIV disease or people who live with HIV disease, focus on your responsibility to prevent both overt and covert discrimination. These are some possible problem areas to be aware of: