Employers must protect the safety of all employees in their workplace. However, this responsibility must not violate the rights of employees with Acquired Immune Deficiency Syndrome (AIDS) or certain other diseases. In your day-to-day dealing with employees, there won't be any need to treat an employee with AIDS differently from the way that you treat other employees. Nevertheless, you should anticipate and prepare for any situations where safety precautions may be necessary. Your AIDS related concerns may be more complicated if your business is in one of several specific industries. Some employers will find it beneficial to create a formal policy addressing AIDS in the workplace.
As part of their duty to keep employees safe from potential workplace health hazards, employers have a duty to take precautions to protect employees from diseases that could be transmitted in the workplace while at the same time protecting the rights of employees with the medical conditions.
Acquired Immune Deficiency Syndrome (AIDS) is the disease that is at the forefront of this workplace safety issue mainly because of the fear of how this disease can be transmitted. Also, because of the stigma that is often attached to this disease, employees who have AIDS fear that they will suffer employment discrimination because of their condition. Since AIDS has become a workplace issue, other medical conditions, such as Hepatitis B virus (HBV), have also raised workplace concerns. You may feel that you are caught between two opposing forces because of legal restrictions and concern about the health and peace of mind of all your employees.
The best way to protect the safety of your employees without segregating or penalizing individuals with medical conditions such as AIDS and risk running afoul of civil rights laws or the Americans with Disabilities Act (ADA) is to arm yourself with the facts so that you can assess the risk to your workplace safety and respond appropriately.
Tip: Our discussion focuses on AIDS in the workplace, but the steps outlined here can easily be adapted to any disease that carries similar concerns regarding workplace health safety.
The facts about AIDS
There is a tremendous amount of information available concerning AIDS; however, the basic facts are as follows:
- AIDS is a serious illness that harms the body's disease-fighting immune system and, sometimes, the nervous system. A virus called Human Immunodeficiency Virus (HIV) is found in people who have AIDS. Those infected with the virus may remain well for an indefinite period after being infected with HIV and show no signs of infection.
- AIDS cannot be transmitted by casual contact.
- There is no risk of acquiring the disease from workplace activities in most workplaces.
- Safety precautions should be taken in occupations where exposure to contaminated blood is possible.
- Unless there is a work-related reason, you should maintain the employee's confidentiality and not tell other employees that he or she has AIDS.
- The Americans with Disabilities Act (ADA) prohibits employers, employment agencies, labor organizations, or joint labor-management committees from discriminating against individuals with AIDS, AIDS-related complex, and both symptomatic and asymptomatic HIV-infected individuals with respect to:
- job application procedures
- employment compensation
- other terms and conditions of employment
Now that you have the facts, how can you effectively deal with AIDS in your workplace? Several components are involved. You should understand:
- your legal duties to employees who have AIDS
- safety precautions you must take
- how to create a policy to address AIDS
- how AIDS affects specific industries such as health care, food service, heavy industry, and personal services (massage therapists, hairdressers, cosmetologists)
Legal duties to workers with AIDS
If you find out that an employee has AIDS, you will have several issues to deal with, including whether the employee will be able to continue to do the job and whether you should tell other employees about the employee's condition.
Reasonable accommodations. If you have 15 or more employees, you are subject to the Americans with Disabilities Act and may have to make some reasonable accommodations for an employee with AIDS that will allow the employee to remain employed.
Controlling costs. If you decide to try to control rising costs through medical benefit plans, you must understand that all attempts to control costs must apply to all claims. The HIV-infected employee's claims cannot be singled out and treated differently from other claims.
Do not use cost control as a reason not to provide prudent safety precautions or institute compliance and enforcement procedures.
Right to privacy vs. legitimate business needs. In most instances, you will not need to share the news of the employee's illness with other coworkers. In determining whether or not to do so, you also need to weigh the employee's right to privacy against your legitimate business needs. Remember, if you are found to have violated a person's right to privacy, you may find yourself facing a lawsuit.
In every instance, you must weigh the legitimate business interest in obtaining and publishing the fact that an individual has AIDS or an AIDS-related illness against the degree of intrusion into an employee's privacy. Again, consider the confidentiality of the infected employee before announcing the person's private issues.
Example: In an office environment, where the exchange of body fluids is rare, you would have far less of a legitimate business reason to probe into an employee's privacy regarding AIDS than if your business is in the health care field, where the risk of an accidental exchange of body fluids may be higher.
You also have a duty as an employer to protect the health of employees in your workplace where AIDS is a safety issue. Several precautionary steps can accomplish this goal without violating your duty to an employee with AIDS.
Safety precautions and preparations for AIDS-related issues in the workplace
Treat an employee who has been diagnosed with AIDS no differently from any employee with a serious illness and take appropriate precautions (to both protect life and dignity) in your workplace.
In general, you should always recognize and prepare for situations that may result in contact with potentially contaminated body fluids, even if you think there's no possibility that any of your employees might be HIV-positive. By developing precautions against certain types of contact, you can accommodate a potentially HIV-infected employee, assure the safety of other employees, and comply with the Occupational Safety and Health Administration (OSHA) mandate to provide a safe workplace.
To determine the types of precautions that you need to take, examine all aspects of your operation and look for circumstances where employees may be exposed to blood. Although this possibility is obvious in some industries, certain precautions can be taken even in office environments, particularly in the event of an emergency.
Actions you should take include the following:
- Provide employees with protective clothing such as rubber gloves to help prevent direct contact between the potentially infected blood of an injured employee and an employee that assists the injured employee. A logical place for these is in the first aid kit.
- Ensure that any safety precautions that you adopt are required of all employees working in positions where some risk of exposure has been assessed.
- Report exposures to bodily fluids immediately to a medical professional. The exposed worker and the individual who was the source of the exposure should be evaluated by a doctor to determine the possible need for HIV testing with the confidentiality of both persons protected at all times.
- Train employees at every level about how to respond and what the facts are. Open and honest communication will help to diminish employee fears.
Preparing for AIDS in your workplace
As the spread of AIDS increases, your chances of employing someone with AIDS or HIV increase. So, it's best to be prepared to handle the situation, should it ever arise. The following checklist may help you to effectively do so:
- Develop proper employment interviewing techniques to avoid discrimination.
- Handle medical information confidentially.
- Immediately deal with any rumors, slanderous jokes, or fears you hear from employees.
- Manage fair discipline procedures for everyone, including people with AIDS.
- Provide guidance on AIDS testing and workplace safety concerns.
- Deal with customer problems, i.e., if a customer discriminates or complains.
Creating a formal AIDS policy
As with the creation of any employee policy, there are pros and cons. If you elect to create a formal policy addressing AIDS, it should contain:
- a commitment to protect the health of all employees and provide a safe work environment
- a commitment to treat AIDS like any other life-threatening illness; if medically fit and able to perform job duties, affected employees should be permitted to work
- a provision of reasonable accommodation and job modification for AIDS victims when appropriate
- an outline of your business's position on AIDS testing, if any
- procedures for any supervisors to fairly handle AIDS cases and encouragement to treat persons with AIDS with compassion and understanding
- a commitment to maintain confidentiality of medical information
- a commitment to keep your policy medically updated and provide employee education on AIDS and your policy
- an overview of benefit plans for AIDS, including provisions for case management, hospice/home health care, and experimental treatment when applicable
- a provision for referrals to community resources/experts for consultation and treatment.
The Business Tools contain a sample policy addressing AIDS in the workplace. You can edit it to fit your business's needs.
AIDS in specific industries
If your business is in one of several specific industries, your concerns about AIDS and your need to deal with them is far more complex than it would be in other industries because of the increased likelihood of exposure to contaminated bodily fluids or because of other health and safety requirements. The following are industries where extra measures may be warranted:
- Heavy industry. If yours is a heavy industry where laceration-type injuries are a more common occurrence, consult with medical experts to determine the best way of handling these types of injuries
- Food service. Although there is no evidence that the virus is transmitted through the handling of food, you can provide your food service workers with rubber gloves prior to handling any food.
- Health care workers. Health care workers infected with HIV or the more virulent form of Hepatitis B virus (HBV) should follow guidelines issued by the Centers for Disease Control and Prevention (CDC).
All health care workers should follow universal precautions against infection, including appropriate use of hand washing, protective barriers, equipment sterilization, careful handling and disposal of needles and other sharp instruments, and the use of gloves.
- Personal service occupations. Employees in personal service occupations (hairdressers, barbers, massage therapists, cosmetologists, and other "hands-on" positions) should sterilize or use disposable instruments where appropriate.