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 www.HospitalityLawyer.com.
Stephen can be contacted at (713) 963-8800 or via email at
[email protected].