Checklist:  Aids Discrimination and Compliance Issues

Individuals with AIDS and/or the HIV virus are protected from employment discrimination under Title I of the Americans with Disabilities Act (ADA) of 1990. The ADA and the Rehabilitation Act of 1973 specify that their protections do not extend to a person who has a currently contagious disease or infection, and who, by reason of such disease or infection, would constitute a direct threat to the health or safety of other individuals or who is unable to perform the duties of the job. There are few jobs in which an individual with AIDS or HIV would pose a direct threat.

Remember: the laws protecting individuals with disabilities do not protect an individual whose disability, even with reasonable accommodation, prevents him from performing the essential functions of the job.

Expert advice: Employers who wait until they are confronted with an AIDS case before developing a comprehensive AIDS policy risk being unprepared to handle what could become a crisis if workers responses to an AIDS-infected coworker are extreme. Human resources experts advise that managers and supervisors efforts to educate workers about the medical evidence against the contraction of AIDS through casual contact will not appear to be genuine to workers if not begun until after a problem arises.

Some state and local jurisdictions have specifically indicated that they consider AIDS to be a protected disability.

Checklist

The checklist below can be used by managers and supervisors to highlight compliance issues raised by the federal disability discrimination laws.

____ 1. Supervisors and managers should strictly observe applicable Privacy Act requirements in connection with any medical documentation that becomes part of the personnel record of an employee with AIDS.

____ 2. Managers considering changes such as job restructuring, detail reassignment, or flexible scheduling for HIV-infected employees should do so in the same manner as they would for other employees whose medical conditions affect the employee s ability to perform in a safe and reliable manner.

____ 3. For jobs where drug testing or regular physical examinations are considered necessary, HIV testing may also be desirable to alert the manager to potential safety problems. State laws should be checked for restrictions on the employer's right to require HIV testing.

____ 4. If the U.S. Secretary of Health and Human Services determines that AIDS can be transmitted to others through the handling of food, an employer may refuse to assign or continue to assign and HIV-positive employee to a job involving food handling if the risk of transmission cannot be eliminated by reasonable accommodation. 

Reprinted with permission. © CCH