Reasonable accommodation and unreasonable fears: an AIDS policy guide for human resource...

Executive Summary

As AIDS becomes more prevalent in our society, organizations will find it necessary to develop AIDS-related policies. Human Resource (HR) personnel will have primary responsibility for implementing and overseeing such policies. Increasingly, organizations will incorporate concerns

about AIDS into their Employee Assistance Programs (EAP). This article discusses employees' fears (both rational and irrational) about contracting AIDS from co-workers, legal rights of persons with AIDS (PWA), and rights of employees who refuse to work with persons with AIDS (or someone who is HIV positive). Also discussed is organizational policy AIDS, education and training for employees so that they can understand how the disease is and is not transmitted, and the role of the employee assistance professional in counseling and referral for AIDS-related concerns of employees.

Introduction

Fear and ignore associated with the disease AIDS can cause disruption to an organization when an employee with the disease works in close proximity to other employees. A study which surveyed co-worker's reactions to working with persons with AIDS (PWA) found that 66% would be concerned about using the same bathroom, 40% would be concerned about eating in the same cafeteria, and 63% would be concerned about sharing tools or other work equipment (Individual Employment Rights, 1988). HR professionals, especially those working with Employee Assistance Programs (EAP), are ideal individuals in on organization to address these fears and to provide counseling both for employees suffering from fear of AIDS or suffering from the disease itself. This paper provides guidelines for HR personnel to develop an AIDS policy and outlines the role EAP professionals play in that policy.

AIDS first came to medical attention in 1979. According to 1989 figures from the National Commission on Aids, from 1979-89 there were 112,000 reported cases. At the end of the last decade, 65,000 people had died from the disease. Over 500,000 cases are expected in the United States alone by 1993.

Minorities are disproportionately affected by this disease. While Blacks make up 12% of the population and Hispanics 6%, they comprise 24% and 14%, respectively, of AIDS cases. Almost 50% of all persons suffering from AIDS, from newborns to age 29, are black or Hispanic, with 80% of infected newborns in these minority groups (Minter, 1988).

This bleak picture, along with the irrational fears of many employees, requires a proactive response. The responsible organization must provide educational programs on how to prevent contracting the disease and institute a comprehensive AIDS policy before any major controversies arise.

A random survey, taken in 1989 by Crain's Chicago business, asked 1,500 local Chicago businesses how they would react to keeping an employee on the job who had tested positive for the Human Immunodeficiency Virus (HIV): 50% said they would allow the person to continue to work as long as he or she showed no symptoms, 38% were unsure of how they would react, and 12% stated they would fire the employee. An astonishing 35% responded that PWA should not be considered handicapped (Oloroso Jr., 1989).

Legal Issues: AIDS as a Handicap

In the employment context, AIDS raises two major questions:

1. What are the legal rights of PWA?

2. What rights do employees have to refuse

to work with a PWA (or someone who is

HIV positive)?

Rehabilitation Act of 1973

PWA are protected by federal and state laws which prohibits discrimination against the handicapped. Federal law prohibits discrimination based on handicap status for those organizations who have federal contracts of $2,500 or more or who receive federal funds. Also, many states have their own laws dealing with handicap discrimination.

Under the federal Rehabilitation Act of 1973 (29 USC 504), a handicapped person is defined as an employee or applicant who "has a physical or mental impairment which substantially limits one or more of a person's major life activities" or is regarded as having such an impairment.

A major ruling by the Supreme Court (Nassau County et al. v Arline, 1987) determined that a person suffering from a contagious disease could be considered handicapped under Section 504 of the Rehabilitation Act. Further more, a later Appeals Court ruling specifically addressed the issue of AIDS as a disease and determined that a teacher with AIDS was covered by the definition of handicapped in the 1973 Act (Chalk v U.S. District Court, 1988).

Therefore, discrimination based on the disabling effects of AIDS or related conditions is legally prohibited. Furthermore, in October 1988, the Department of Justice released a memo stating that its interpretation of the Rehabilitation Act does not allow discrimination against both those with symptoms and those without symptoms of HIV infection-persons regarded as being handicapped.

Compliance with this Act includes the concept of "reasonable accommodation." Employers must attempt to provide alternatives for PWA so they can continue their employment, if possible. This includes job modification, part-time or flexible hours, job sharing, or transfer to the extent it does not create an undue hardship for the employer.

For example, in 1989, Mountain Bell was found to have violated Section 503 of the Rehabilitation Act and ordered to pay a former employee approximately $3,000 because it did not make a "reasonable effort" to accommodate the employee's handicap. The judge stated that the employer could have transferred the employee when the problem was first discovered. Also, the judge decreed that the employee's supervisor did not possess the requisite skills to cope with the employee's illness and that guidance should have been provided by the company physician. Though this case involved an employee with asthma, it could certainly be applicable when refusing to provide reasonable accommodation for an employee with AIDS, especially if the supervisor acts with an intent to discriminate (OFCCP v Mountain Bell Co., 1989).

Americans with Disabilities Act

Whereas the 1973 Rehabilitation Act covers only those employers who do business with the federal government, the recently passed Americans with Disabilities Act (ADA, Public Law 101-336), which goes into effect July 26, 1992, applies to all employers who have 25 or more employees. by 1994 requisite number of employees is reduced to 15.

Title I of the ADA prohibits employment discrimination on the basis of a disability with regard to hiring, discharge, compensation, advancement, job training, and other terms of employment. Similar to the 1973 Act, ADA defines disability as a physical or mental impairment that substantially limits one or more of an individual's or life activities, having a record of such impairment; or being regarded as having such an impairment. Persons disabled due to a contagious disease are specifically included in this definition.

Individuals covered under the ADA are those with a disability who, with or without reasonable accommodation, can perform the essential functions of the desired job. An employer must accommodate the disabled person unless such accommodation would impose an undue hardship upon the operation of a business. Though not defined, the Act includes job restructuring, part-time or modified work schedules, and reassignment as examples of accommodation.

Though discrimination against PWA will be illegal, the ADA specifies that an employers is not required to retain an employee with a contagious disease who poses a direct threat to the health or safety of other employees; however, under such circumstances the employer must prove that the employee poses a significant risk to others and no reasonable accommodation is available that will remove the risk (Kelly, 1990; Thornburgh, 1990; Creasman, 1991).

Recent court decisions interpreting the federal and state laws which prohibit discrimination against the handicapped have determined that PWA are protected against adverse employment decisions motivated by the fact of their disease. As long as individuals with AIDS are able to perform their jobs and pose no significant threat of transmission, employers are prohibited from terminating them, refusing to hire them, or otherwise discriminating against them.

Legal Issues: Refusal to work with PWA

No present federal statue exists which protects an employee from discipline for refusing to work with a handicapped co-worker. AIDS is not easily transmitted. It is spread by exchange of bodily fluids: primarily blood, semen, and vaginal secretions-an event not likely to occur in the employment context. In the Arline decision mentioned above, the Supreme Court clearly stated that employees cannot be discriminated against because of an irrational fear on the part of other employers or co-workers that they might be contagious.

Unfortunately, organizations will have to confront situations where co-workers will refuse to work with PWA. Under most circumstances, a refusal to work would justify some form of disciplinary action. Two present laws relating to this issue merit discussion: the Occupational Safety and Health Act (OSHA) and the National Labor Relations Act (NLRA).

Under OSHA, an employer is required to provide employees with a safe and healthful work-place; however, a refusal to work may be protected if all three conditions listed below are met:

1. A reasonable person acts in good faith

when faced with immediate risk of death

or serious injury.

2. The employee must have asked the employer

to eliminate the risk.

3. The emergency nature of the hazard left no

time to resort to regular, statutory enforcement

channels (29 CFR 1977.12 [b] [2]).

If the employer is providing the appropriate personal protective equipment and following the Centers for Disease Control guidelines for safe work practices, it is unlikely that a refusal to work with a PWA would be protected under this Act. If employees have not been educated about how aids is transmitted, however, or informed about prevention control and assured that their employer provides a safe work environment, a work refusal based on a reasonable belief that there is a real danger of serious injury or death may be protected (Elkiss, 1981).

Under the NLRA, which covers private sector employees and many state public sector laws, employees have a right to engage in "concerted" activities for the purpose of . . . mutual aid or protection" (Section 7). Since no case involving AIDS and concerted activity (two or more employees) has been heard by the National Labor Relations Board, it is unclear as to how the Board would rule if a group of employees refused to work with someone who has AIDS based on a "good faith belief" that they were exposed to serious injury. If the employer has provided AIDS education, training, and counseling, howerer, such refusals would most likely not be considered protected concerted activity under the law.

Section 502 of the NLRA states, nor shall the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work. . . be deemed a strike under this Act. This applies primarily to workplaces with union contracts that contain a no-strike clause. Court decisions have maintained that Section 502 requires both proof that a good faith belief exists and objective evidence of "abnormally dangerous" conditions. In the normal work environment, it would be difficult to meet both these requirements (Colosi, 1988).

Again, education is the best defense. If AIDS training has been provided, employees would not be able to claim that their fears are reasonable and that abnormally dangerous conditions exist. Thus, employees who refuse to work with or around PWA could be disciplined and/or discharged in accordance with the organization's policy on insubordination (Temple III, 1990).

Only a few discipline cases involving insubordinate employees who refused to perform their work duties due to fear of contracting AIDS have been arbitrated. Most are settled in earlier steps of the grievance procedure. The majority of arbitrators faced with such an issue have ruled that employees generally are not protected under the law or the collective bargaining agreement. Discipline will be sustained, but discharge is too harsh a penalty. Some lesser form of discipline should be imposed, such as transfer or suspension (Hauck, 1990).

But can an employee demand that special precautions be taken when working with PWA? Employers must provide safeguards for all employees. For example, a request by nurses in California for the use of gloves and masks when treating AIDS patients was allowed under state law. In Minnesota, an arbitrator reinstated a prison guard who was discharged for refusing to conduct a "pat-down" search on a prisoner with AIDS. The employee feared he would contract AIDS. Earlier, the warden had issued a memo stating: "no one really knows all the ways AIDS is transmitted, so be careful!" The employee agreed to search prisoners if he could wear gloves; however, his request was denied. After he was discharged, gloves were given to other employees doing searches. The arbitrator found that a refusal to work would normally be grounds for discharge, but here the employer was partially responsible for contributing to the employee's irrational fear (AFSCME v State of Minnesota, 1985).

As stated, there is very little legal precedent in dealing with AIDS. Neither the OSHA or NLRA has been interpreted to allow co-workers to refuse to work with PWA because of exposure to hazardous working conditions (Stein, 1987). Refusal-to-work cases can be minimized by providing education and counselling to all employees, including HR personnel. Employers should provide training on how AIDS is and is not transmitted, including proper precautionary procedures and preventive methods specifically relating to the work performed. Informed employees who then refuse to perform assigned duties based on irrational fears of contracting AIDS may be disciplined. From a a legal stand-point, refusal to work by informed employees would be unreasonable.

Organizational Policy

AIDS raises a number of organizational issues such as work accommodation, insurance liability, confidentiality, and refusal to work with PWA, to name only a few. This is why it is important for an organization to have a formal AIDS policy which has tow main objectives:

1. protection of the rights of HIV-infected

individuals

2. protection of noninfected co-workers from

the disease.

In the Chicago survey mentioned above, an overwhelming majority of the 255 companies who responded said that they had no formal policy for dealing with AIDS and did not plan to implement one in the near future. The survey found only 4% of Chicago-area companies had a policy or program dealing with AIDS, whereas 10% of respondents said they plan to implement a policy and education program in the near future (Oloroso Jr., 1989).

An earlier study co-sponsored by Fortune magazine and Allstate Insurance Company found that 20% of the respondents had written AIDS policy; that same percentage of respondents reported an AIDS case in 1988. Furthermore, 40% agreed that it would be beneficial to have an AIDS education program. Organizations in the service sector, Northeast and West, were more supportive in their attitudes toward AIDS than others. Results of this study prompted a response from six task forces comprised of representatives from approximately 70 organizations which recommended developing an AIDS policy before an organization must deal with its first case (Minter, 1988).

Recently, a survey was sent to 307 HR administrators in the San Francisco Bay area asking about their AIDS personnel policies and practices. Responses were received from 92 firms. One of the questions asked was "Does the organization have a formal written AIDS policy?" Only nine firms (10%) replied in the affirmative; however, 62 (67%) had EAPs and 14 of those (23) had specific information about HIV/AIDS in their EAP (Kohl, 1991).

Employers who bargain with a labor organization should discuss their AIDS policy with the collective bargaining representative. Under the NLRA, terms and conditions that affect employment are mandatory subjects of collective bargaining. It could be argued that an AIDS policy affects terms and conditions of employment and is therefore subject to good faith bargaining (Minter, 1988; Temple III, 1990).

Employment policies should be based on the scientific and epidemiological evidence that PWA or HIV infection do not pose a risk of virus transmission to co-workers through ordinary workplace contact. Top management and union leaders should endorse nondiscriminatory employment policies and educational programs about AIDS. Included should be up-to-date educational programs about personal risk reduction.

Below are examples of what to include in an AIDS policy (Patterson, 1989; /Trebilcock, 1989):

1. the type of disciplinary action faced by

employees who refuse to work with PWA

2. Any specific personnel policies such as the

definition of reasonable accommodation

for those PWA who may be able to work

but on a limited basis (including medical

and leave practices)

3. names of places where employees can go

for counseling or education (preferably

through the EAP)

4. the provisions for referrals through EAP to

community resources and to experts for

consultation and treatment

5. promises of strict confidentiality of an employee's

AIDS status, medical information,

and counseling referrals

6. the nature of available educational programs

with emphasis on combating the fear

of contracting AIDS at work (de Dios Pozo-Olano,

1987).

Employee protection against disclosure of information must be incorporated into a written AIDS policy. Breach of confidentiality may lead to lawsuits based on defamation of character and ivasion of privacy. Before using the services of an EAP, the employee must be informed of the type of information that maybe disclosed to the company and under what circumstances it may be revealed. Consent and authorization for such disclosures should be obtained (Lehr, 1986). Whenever possible, complete confidentiality must be guaranteed, information relating to an employee's medical condition should be strictly confidential, unless it can be proved that others have a need to know (Lawton, 1991).

Training and Education

AIDS education is a crucial component of any organizational AIDS policy. This should take place before a specific incident occurs, since programs implemented after employees discover a co-worker has the disease may be viewed as biased. For example, at one organization, a woman employee feared contracting AIDS by sharing a locker with a homosexual employee (whose HIV status was unknown). She had very little knowledge about the disease, but a great deal of fear (Way, 1989). This irrational fear must be confronted, not avoided, by the education of employees.

Education programs should be held during normal work hours with all employees in a department (where practicable) required to attend. If attendance is optional, many employees may not come because they fear their sexual or drug status may be suspect if they show any interest in learning about the disease. At a large midwestern university, an AIDS educational seminar was held for faculty and staff-during normal working hours. Out of hundreds of potential attendees, only eight women were present. Many other factors may explain why the turnout was so low, but the above hypothesis may have been a contributing factor. Employees' values cause them to refuse to acknowledge AIDS as a problem about which they should be concerned and to refrain from participating in AIDS education because they fear it might cause others (with similar values) to regard them as potential homosexuals or AIDS victims (Way, 1989, p. 11).

In the survey mentioned at the beginning of this article, a large percentage of employees had unrealistic fears about working with PWA. After the Red Cross conducted a one- or two-hour educational session, employees' knowledge increased and their fear was reduced. A significant increase was seen in the number of employees:

1. who would allow PWA to work as long as

possible

2. whose confidence in handling an AIDS-related

situation at work was increased

3. whose worries about AIDS transmission

were decreased (Individual Employment

Rights, 1988).

Thus, education is the best approach to preventing a and resolving conflicts among PWA, their co-workers, and employers.

The EAP Professional's Role

The growth of EAPs in the 1970s and '80s has been explosive. The number of occupational programs is estimated to have grown from approximately 450 in 1970 to 18,000 in the late 1980s. Despite this growth, most employers have to formal policy or program to respond to troubled employees. One estimate is that only 12% of the nation's work force has access to EAP services (Johnson and O'Neill, 1989).

The EAP professional in uniquely equipped to carry out a corporate policy on AIDS. During the process of assessment and referral counseling, EAP staff may see signs of AIDS-related concerns. HIV-infected persons fall into three groups:

1. Those who test HIV positive but exhibit no

symptoms of disease

2. persons who have developed some symptoms

of disease but are cable of performing

their job duties

3. those too ill to work.

For these employees, counselling through the EAP should be encouraged. It is the responsibility of the EAP to encourage

the organization to establish a policy to guide

the treatment and identify the rights of employees

with AIDS. It should ensure that legislatively

mandated policies are implemented

and take responsibility for disseminating information

about the disease to allay the fears

of employees (Johnson and O'Neill, 1989,

p. 78).

In order for EAP personnel to be effective counselors to employees they must first educate themselves about AIDS. The EAP professional must understand the routes of transmission, legal requirements for the handicapped (especially the the confidentiality issue), and how to allay the irrational fears employees may have regarding all aspects of the disease. A positive result of this education process is that EAP personnel will have to work through their own fears and prejudices associated with AIDS and with counseling PWA.

Support available through an EAP is also crucial for the employee who may have no symptoms of disease, but may be HIV positive. Deteriorating mental health is a distinct possibility. The employee may begin to suffer from self-pity, anxiety, anger, and guilt. Depression may develop. Such individuals may need to restructure personal relationships both at home and at work. The EAP professional is in a position to promote trust and serve as a source of referral to support groups, and may also have a role to play in helping the friends and relatives of the HIV-positive employee (Krueger, 1987).

When an employee refuses to work with an HIV-infected co-worker based on a good faith belief that he or she is exposed to the disease AIDS, the EAP counselor should work with that employee and provided medical information regarding risk factors and proper work procedures. Consequences of employee behavior also must be made clear.

EAP professionals can play in pivotal role, from providing clinical services to employees with AIDS to education and policy development. They can act as a clearinghouse by providing the following information:

1. pamphlets, fact sheets, and AIDS-RELATED

articles

2. Organization policy guidelines and confidential

information

3. individual, family, and group counseling

through the EAP or an outside counseling

service referred by the EAP

4. lists of agencies assisting PWA

5. education programs about the legal rights

of PWA.

Conclusion

Advances in medical treatment have improve the quality of life for many PWA. New medications make it possible for these individuals to live longer and more productive lives. They will be able to continue working long after initial diagnosis of HIV infection. Thus, it is extremely important that employers develop an organizational AIDS policy before numerous cases surface. The enlightened employer will implement a policy that balances the rights of PWA to continue productive employment and the rights of all employees to a safe and healthful workplace.

Court decisions interpreting the Rehabilitation Act of 1973 and the newly legislated ADA include persons suffering from the disabling effects of a contagious disease under the definition of a handicapped employee. Thus, employers cannot discriminate against PWA and must provide them reasonable accommodation, unless such accommodation would create undue hardship (such as excessive costs). Current income level, benefits, and job status should be maintained whenever possible (Cohen, 1989; Johnston, 1989). The rule employers should follow is: they may not discharge or in any way discriminate against a PWA based solely on the fact that the employee has a contagious disease.

A major concern employers have is to find a balance between the rights of PWA to continued employment and the rights of co-workers to a healthy and safe work environment. In 11 arbitration cases involving employees discharged solely because they had AIDS, arbitration ordered reinstatement in each case. The decisions turned on whether the employee was capable of doing the job if reasonably accommodated and if he or she posed no health threat to co-workers or the public (Hauck, 1990). unless an employer can prove that the employee is no longer capable of performing required job duties or that a significant health threat exists, PWA must be allowed to continue their employment.

In the San Francisco Bay area study mentioned above, only nine firms took a proactive position by implementing an AIDS policy. Consider that San Francisco is a geographic region with "assumed AIDS awareness among business firms" (Kohl, 1991, p. 118) and with more progressive personnel policies than in the rest of the nation. It is surprising that more firms have not formally addressed the problem. Policies must be developed before an organization deals with its first AIDS Case. This is not happening.

Education, coupled with counseling, it the the key to minimizing the impact AIDS will have on an organization. PWA must be referred to the EAP, which should have a procedure for helping. Counselors can provide employment-related information such as modified work schedules, concerns over confidentiality, health and disability insurance, and referral services. They can discuss how best to deal with possible reactions of co-workers if they become aware or suspect that the employee has AIDS-related medical problems. The [AIDS] individual will need ongoing support and advocacy in the work environment and the EAP is an excellent resource to act in this capacity (Bunker, 1987, p. 21; Pozo-Olano, 1987).

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Biographical Sketch

Helen Elkiss is Associate Professor of Labor & Industrial Relations, University of Illinois at Urbana-Champaign. Her recent research relates to recent trends in the arbitration of substance abuse gievancesw both in the public and private sectors, and to effective labor-management committees in the areas of job safety and health.