Tuesday, December 8, 2015

How to Accommodate Your HIV-Positive Employees

The EEOC recently released a publication discussing how to accommodate HIV-positive employees. The publication is directed toward health care providers, but it provides a lot of useful information for employers as well, and I recommend that employers or those in HR take a look at it. As I have discussed, advances in HIV medications now allow HIV-positive individuals to live longer, healthier, and more productive lives than was thought possible even a decade ago. Due to the decline in the AIDS mortality rate, a greater number of Americans than ever are now HIV-positive. This increases the likelihood that you may have an HIV-positive person in your workplace. 

The EEOC publication discusses how an employer can accommodate such an employee. The Americans with Disabilities Act requires employers to make “reasonable accommodations” to disabled employees, which includes those employees with HIV. A reasonable accommodation is a change in the way things are normally done to permit a disabled person to perform his job. This might include, for example, installing a computer screen magnifier that allows an employee with poor eyesight to read the computer screen. 

The EEOC publication makes a number of suggestions for accommodating HIV-positive employees. It suggests providing these employees with altered break or work schedules that allow them to respond to the symptoms and obtain treatment of HIV while continuing to work. An example given is providing an HIV-positive employee with unpaid leave for treatment or recuperation or allowing the employee to work from home. 

The publication also notes that an HIV-positive employee should make a request for an accommodation before problems at work arise. An employer can fire an employee for poor work performance, even if it was caused by a disability, so the publication suggests that HIV-positive employees be upfront with their employers about their condition and any accommodations they may need. 

The publication also warns that employers should not ask whether an HIV-positive employee would pose a threat to the workplace. The ADA has a strict standard for excluding a disabled individual from a job because of safety concerns. Negative employment action may only be taken against a disabled individual if he would pose a “direct threat,” which means that the individual poses a significant risk of causing significant harm. The mere presence of an HIV-positive employee in the workplace would not make that employee a direct threat. 

Ultimately, employers should be knowledgeable about the ADA and how it requires them to treat HIV-positive employees. An employer may want to contact an experienced attorney for more information. 

You can access the EEOC publication by clicking here.