AIDS in the Workplace: Issues for Employers
Starr, Michael, Public Management
In the nineties, AIDS continues to spread beyond traditional risk groups, and due to medical advances, people with this disease live and work longer than before. This creates new challenges for employers, who, while trying to respond humanely to workers with AIDS, also must be concerned about productivity, the effective performance of their institutional mission, and the health of their other workers and the public they serve.
Today, the Americans with Disabilities Act (ADA) and many state and local laws prohibit employment discrimination against people with disabilities, including those with AIDS and HIV infection. There are several legal pitfalls that employers must avoid in dealing with AIDS to assure their compliance with these laws.
No Restrictive Assignments
There is virtually no risk of infection from HIV-positive employees in almost all ordinary workplaces. It is therefore generally illegal for employers to isolate HIV-positive workers or restrict their duties because such limitations are not ordinarily justified by a legitimate concern for workplace health.
No AIDS-Related Inquiries
Antidiscrimination laws also prohibit preemployment inquiries into the nature or severity of any disability. Both AIDS and HIV infection (without the symptoms of "full-blown" AIDS) are disabilities under the law. Employers therefore can not legally ask employees if they have AIDS or are HIV-infected. And they can not seek information indirectly about possible AIDS or HIV infection by asking employee applicants about, for example, recent hospitalization or use of prescription drugs.
Employers are permitted to give medical examinations for new employees but only after an employment offer is made and only if such examinations are given to all workers in the same position or job category. The results of any post-offer medical examination must be kept in separate medical files--not in general personnel files. Information about HIV infection can not be disclosed to other workers or even supervisors unless it is job-related or justified by safety concerns. Because HIV infection is not transmitted in ordinary workplaces, it is illegal for employers to disclose these medical results.
Accommodation for Work Limitations
The law requires employers to make reasonable accommodation for workers with known disabilities if that would enable these workers to perform the essential functions of their jobs satisfactorily. Employees with AIDS and HIV infection often fatigue more easily than others, and reasonable accommodation may mean permitting more frequent break times or an altered work schedule--starting later or leaving earlier than coworkers. Reasonable accommodation also may mean permitting additional leave time for these workers for special medical treatments.
The law does recognize, however, the employer's legitimate need to have work performed up to its standards. …