Should your company test for AIDS?

The question of whether employers should test employees and/or new hires for the AIDS virus is not an easy one. Some of the issues employers face include:

• Reliability of testing as a way of identifying people with AIDS-currently available testing procedures can yield false-positive and false-negative results.

• How to use test results in light of prohibitions on disability discrimination.

• Risk of litigation for invasion of privacy.

• Risk of defamation claims if false test results are disclosed and the tested employee does not have the AIDS virus.

The problems created by AIDS testing have prompted federal, state and local governments to enact laws that impose restrictions on employers' rights to test and their uses of the test results.

Federal laws. Workplace rules that require employees to submit to mandatory testing for certain infectious diseases have been challenged as disability discrimination under the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990. Rules requiring the disclosure of test results have also been challenged on constitutional grounds.

Medical examinations and inquiries are covered by the ADA's prohibition against discrimination. They cannot be conducted before an offer of employment is made. Any identification of AIDS by inquiry or examination at the preoffer stage is prohibited by the ADA. The use of post-offer medical exams is also restricted. Medical exams can be required of current employees if job-related and consistent with business necessity. Voluntary medical examinations are permitted as part of an employee health program available to employees at the worksite where the employee works. Medical information must be kept confidential.

US Constitution. The Fourth Amendment to the US Constitution, which prohibits unreasonable searches and seizures of citizens by governmental entities, can be an obstacle to mandatory AIDS testing of public employees.

State law. While private employers are not covered by the Fourth Amendment, they may nonetheless be subject to state laws that restrict AIDS testing and disclosure. The problems created by AIDS testing has prompted many state and local governments to enact laws about the confidentiality of AIDS test results, and to impose restrictions on an employer's right to test and how test results are used. Check State Laws for any AIDS testing laws that apply in your state(s).

Practical application. A positive AIDS/HIV test does not disqualify an employee in the absence of other signs of danger. The speculative risk of a future safety hazard is not a sufficient reason to disqualify an individual with a disability from a job. But the positive test result would alert the employer and the employee to the potential risk, and the employee's functioning could be monitored for telltale danger signs.

Records maintained by an employer may reveal positive test results. The confidentiality of such disclosures should be maintained, even after termination. The rights of the employees at common law are not clear. Caution suggests that the employee's privacy be rigidly observed. For a discussion on managing employees with AIDS, see ¶85,010 .