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HIV - Positive
Employees are Protected by Law
career centerhiv-positive employees are protected

It is late Saturday night and you have had a long week. To top it off, the General Manager, Allan Prescott, just had a brief, but pointed, conversation with you, the bar manager. He advised you that he had heard a rumor that one of the newly hired bartenders was HIV positive. He would not disclose his source for the information, but felt that it would be in the best interest of the restaurant to terminate this employee immediately. You advised him that you were not absolutely certain that it was the most prudent thing to do, but that you would research the circumstances thoroughly and respond to him first thing Tuesday morning.

You spent Sunday afternoon searching different websites about AIDS in the workplace to sit down on Monday morning and draft the following memo:

Dear Allan:
Over the last several days, I have given your concern a great deal of consideration. Based on the very sensitive nature of this matter, I felt that it was best that I respond to you in writing.

As you probably know, AIDS is ordinarily perceived by the general public as a problem that essentially impacts select groups of people. Accordingly, most business operators, myself included, have not seriously considered how to react to AIDS and AIDS related illnesses. From my research this weekend, I have changed my view and believe that it is probably inevitable, given the actual broad range of people affected by AIDS, and AIDS related illnesses, that we will, at one time or another, have employees who are HIV positive, have AIDS or an AIDS related complex. Therefore, it seems to me that we need to educate ourselves about this disease, our responsibility vis-ŕ-vis our guests, and how to deal with these issues legally, in an operation such as ours.

The following is a synopsis of what I have learned to date:

1. HIV stands for Human Immunodeficiency Virus - this is actually the official name for the AIDS virus.

Estimates vary, but it does appear that there are between 1 and 2 million people in the United States infected with the AIDS virus. These people are considered to be “HIV positive.”I

t is important to note that people who are HIV positive may feel totally well. They may not manifest any outward signs of their positive status. As a matter of fact, they may not even know they are positive. The important point here is that although someone is HIV positive, more than likely they can still perform the essential functions of their job.

2. I also know that the general public would be frightened by the prospect of interacting with an employee perceived to be HIV positive, particularly one involved with the preparation of food and beverages. So I thought that it would be useful to convey to you the following information from the United States Surgeon General’s report, which states categorically that the AIDS virus is not transmitted by: Coughing or sneezing,Close office contact, Shaking hands, Mosquito or other insect bites, Using the same office supplies, Accidentally drinking from the same cups, Restroom facilities, Hugs or casual touching, Dishes, utensils, or food, Tools or machinery, Telephones, office equipment, or furniture, Air, Water

The report goes on to say that we can be assured that the AIDS virus is only contracted by: Intimate sexual contact, Exchange of blood products, Mother to infant contact during pregnancy or delivery.

Obviously, none of these are occurring in the ordinary course of operating our restaurant.

Accordingly, there just does not appear to be any measurable risk for the contraction of the AIDS virus, assuming that the rumor is true.

3. If, in fact, one of our employees is HIV positive, there is the possibility, but not the probability, that he/she may develop the AIDS related complex also known as ARC. This is really one of the “less severe” types of AIDS. Although people have died from AIDS related complex, i.e., ARC, usually people in this category are only occasionally ill and may be physically able to continue working on a regular basis.

4. AIDS is the acronym for Acquired Immune Deficiency Syndrome. This horrible disease is a viral infection which over time destroys the body’s immune system. This leaves the person unable to fend off the invasion of other diseases; the individual becomes weak and debilitated and may, in fact, become unable to perform his/her job.

I think that it is also important to note that from the literature that I reviewed, it does not appear that there is actually a test for AIDS. There is only a test for exposure to the AIDS virus, HIV. Further, just because somebody is HIV positive does not mean that the person has AIDS or that the individual will get AIDS. As a matter of fact, a very significant number of people that are HIV positive (which means that the individual has been exposed to the virus and is potentially at risk for developing AIDS or ARC) will not develop AIDS or ARC. As I am sure you recall, Magic Johnson was diagnosed as HIV positive but he continues to this date to be very productive in our society.

I also thought that it was important to take a look at the legal status of AIDS in the workplace. I discovered that there were a variety of federal, state, and municipal laws that must be considered in this situation. As I am not an attorney, I will not attempt to site the actual laws to you, but I did come to the conclusion that it would not be in the best interest of the restaurant to take any adverse action against the bartender in question. I base that conclusion on the following:

1. AIDS or the HIV infection are defined as protected disabilities under the Americans with Disabilities Act (ADA). As we have more than 15 employees we must be in compliance. The ADA states that employers may not discriminate against employees that either actually have AIDS or the HIV infection or are perceived to have the disability. Essentially, as long as the employee can perform the essential functions of the job, which this bartender certainly can do, taking adverse employment action against him would probably subject the restaurant to significant litigation.

2. I also discovered that the restaurant cannot make an HIV test a requirement for hire or continued employment unless we can somehow justify or prove that the test is a “bona fide occupational qualification (BFOQ)” for the job. As you probably know, a BFOQ is defined as a characteristic or qualification reasonably related to the safe and satisfactory performance of the essential functions of the job. It would be up to us to prove that a person with a positive test result could not safely perform the job. From the information that I have shared with you in this memo, it would make it extremely difficult, if not impossible, for us to justify that burden.

I know that you are also concerned about potential liability to our guests if it became common knowledge that one of our employees was HIV positive, and was interacting with them. But, the information I have gathered makes it clear that since we do not have a duty under the law to test our employees for HIV, we cannot be found negligent for failing to do so.

My recommendation is that we develop a reasonable policy for the restaurant to deal with these issues and that we base that policy on the medical information that is found in the Surgeon General’s report and the reports from the Center for Disease Control. I would also recommend that we begin to educate our staff about AIDS in the workplace. It would also be helpful to establish the expectation and policy that should one of our employees develop AIDS, or an AIDS related complex, they would be treated as any other employee with a life-threatening illness.

In conclusion, the bartender in question has had excellent performance ratings in his short time here and appears to be a very productive employee. I am recommending to you that we not take any adverse employment action against him, and that we develop and implement a policy, as soon as possible, to deal with AIDS related issues. [02/2002]

Stephen Barth is an attorney and associate professor of law and leadership at the Conrad N. Hilton College of Hotel & Restaurant Management at the University of Houston. For more information visit Stephen can be contacted at (713) 963-8800 or via email at [email protected].

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