AIDS in the Workplace

Current medical opinion believes that the AIDS virus cannot be transmitted through casual contact. Unlike a cold or the flu, AIDS is not transmitted through sneezing, coughing, touching or by handling foods. The virus must enter the blood stream to infect someone. As a result, there is no known risk of contracting AIDS from working in a group setting.

Although handicap laws prohibit this type of question, the same as the laws do for race, sex and age, it is proper to inquire if the applicant is unable to perform the job because of a physical handicap. If the business involves health care or an increased risk of transmission, the employer may identify any high-risk jobs (e.g., handling blood samples or use of sharp instruments) and ask applicants for those jobs about AIDS.

Several states have concluded that employees with AIDS cannot be discriminated against because AIDS is a physical handicap. The reasoning is that persons whose physical abilities are impaired should not be deprived of work. State agencies in Illinois, Florida, California, Wisconsin and New York, among others, have found handicap discrimination relating to AIDS. In addition, Section 504 of the Federal Rehabilitation Act has been applied to AIDS' victims who claim handicap discrimination. The definition of handicap usually refers to a physical impairment that limits a major life activity. AIDS comes within this definition because the victim's immune system breaks down from the down from the virus. This means that an AIDS victim, even though impaired, should not be deprived of work, if he/she is capable of performing the job.

Where the purpose is to determine if the employee can perform all aspects of the job and whether any restrictions are needed, the examination is permissible. However, the exam should be part of a pre-hire physical examination.

At least five states, not including Illinois, prohibit their use in employment situations. The recently enacted AIDS Confidentiality Act in Illinois (Ill. Rev. Stat., Ch. 111 1/2, Sec. 7301-7316) while not referring to employers, prohibits testing or release of the results without written consent of the subject of the test, except in limited situations. However, even if a test is properly used by an Illinois employer, there is still a risk of handicap discrimination. Another problem is that the tests are currently of questionable value; they do not show if the person has AIDS, only if there is exposure, and they fail to establish that a person will transmit the virus or even develop symptoms. A recent study found the tests unreliable: 90% of the positive tests on low-risk persons were "false positives."

On one hand, employers must provide a healthy and safe environment to comply with safety and health law, but they also have a duty to protect the rights of handicapped employees. In a recent non-AIDS case involving a contagious disease, the U.S. Supreme Court in School Board of Nassau County v. Airline, 107 S.Ct. 1123, U.S. (1987), stated that before an employer can act to protect workers or the victim, certain issues should be examined:

1. Existence of alternatives
2. Medical opinion on how the disease is spread
3. Probabilities the disease will be transmitted
4. Duration of the risk
5. Severity of the risk
6. Potential harm to others

Currently, precautions should be considered for employees in health care jobs and pregnant women. Physicians of both the AIDS victim and the pregnant employee should be consulted about the risks. There is recent concern in health care jobs that AIDS can be contracted through exposure to blood from infected patients without sustaining puncture injuries. These employers should have received federal guidelines from the government for workers who come in contact with blood, body tissues and tissues contaminated with the AIDS virus. The U.S. Center for Disease Control recommends the use of protective gear to lessen the chances of injury. It is advisable to consult with medical experts before taking precautions.

Illinois handicap laws require reasonable accommodation if it is not an undue burden on the business. For an AIDS victim, this may involve granting time off for doctor's appointments, reduced hours and work-load, flex time, additional breaks, isolation from others, and sick leaves. Isolating the AIDS-affected employee should only occur if medical opinion concludes that the employee's health or safety is endangered by working near others. Once these changes are made, and the employee still cannot perform the job, termination would be permitted under handicap laws. Certain jobs by their nature should be closely monitored, modified or even withheld from AIDS victims, such as lab technicians who deal with blood, or surgeons. In Doe v.Cook County, D.C. N. Ill. No. 87C6888 (March, 1988), a suspended surgeon's- job was mostly restored on several conditions, including his "double gloving" for surgical procedures.

Given the devastating perception of AIDS, it may be expected that some employees will want the AIDS victim removed from their work area. Although employees have a duty to perform the assigned work, the morale of the work force and the adverse impact on productivity should be considered. To combat this dilemma, employees should be shown medical materials pointing out that AIDS cannot be transmitted through casual contact in the workplace. In fact, such educational effort should be made as early as possible, perhaps even before a problem arises. If this education does not work, then it may be advisable to transfer employees or provide protective masks and gloves. Legally, however, an employer cannot involuntarily isolate an AIDS victim because of fear that the work force will be exposed, unless that employee can no longer perform the job and cannot be accommodated.

Employers are faced with another dilemma. If an employer fails to protect the confidentiality of medical information, an action for defamation- could result. On the other hand, employees may claim that they have a right to know so they can decide whether to keep their jobs. Where contact is more than casual, consultation and accommodation should be considered for those who work with the AIDS victims. However, a general announcement to all employees may be detrimental to morale and productivity.

If accommodation does not work, then termination is permissible. However, the National Labor Relations Act protects a "concerted" protest, if there is a legitimate basis for it. Whether AIDS is sufficient has not been determined, nor has it been decided if a terminated employee is entitled to unemployment compensation benefits. Once more, it is vital to educate employees so they will not quit.

It is unlikely that an employee, whether healthy or ill, who works with an AIDS victim will contract the disease from that person. However, there could be liability for employees who treat AIDS patients or who deal with blood from AIDS patients. Recent decisions have awarded compensation to employees who "perceive" they are at risk because they work with an AIDS-infected employee. They were able to show that fear caused them stress-related physical problems. Employers also should be aware that taking any adverse actions against employees who file workers' compensation claims may result in wrongful termination claims in Illinois, which can involve substantial damages.

Customer complaints are not a sufficient defense in an AIDS employment discrimination action. Nonetheless, employers must be sensitive to these complaints or possibly risk losing substantial business. There is an increasing public concern that the AIDS virus may be transmitted in food and beverages handled by infected employees. While this is understandable, the Public Health Service states that it is unfounded. However, some employers in this industry prefer to transfer employees to other jobs thereby risking their anger and possible discrimination claims, rather than being force out of business by customer fears. Any employer whose employees have close personal contact with the U.S. Public Health Service's "guidelines" for these businesses and the proposed National Institute of Occupational Safety and Health's guidelines.

Assure the employee that if he/she can perform the work, no termination will occur. If a performance problem occurs, consider how to accommodate it.

• Consult with the employee's physician about accommodation, the extent of illness and determine if the employee is a risk to others.
• Explain insurance and disability benefits.
• Assure the employee that medical information will be confidential and available only to those with a need to know.
• Consult with legal counsel to determine obligations to the work force, customers and the victim.
• Express sympathy and understanding.