AIDS in the Workplace Law and Legal Definition
Acquired immune deficiency syndrome (AIDS) is a disease that impairs the human immune system and renders it susceptible to infections that would be repelled by a functioning immune system. The terminal stage of the human immuno-deficiency virus (HIV), AIDS is transmitted by contamination of the bloodstream with HIV-infected body fluids, specifically blood, semen, breast milk, and vaginal fluid. The virus is principally spread through vaginal or anal intercourse, by the transfusion of virus-contaminated blood, by the sharing of HIV-infected intravenous needles, or by mothers to fetuses during pregnancy. U.S. Centers for Disease Control (CDC) literature emphasizes that "no additional routes of transmission have been recorded, despite a national sentinel system designed to detect just such an occurrence." AIDS is not spread by casual physical contact (biting insects, or airborne means) and transmission through body fluids such as saliva and tears has never occurred. Once a person becomes infected with HIV, the incubation period averages eight years before AIDS symptoms appear.
Given a supportive work environment and early detection, people with HIV and AIDS can continue to be productive members of the workforce. Studies have shown that for half of the people who contract HIV, it takes more than a decade to develop AIDS. With medical treatment, many of them can manage the infection as a chronic, long-term condition, similar to many other medical disorders. The numbers of people with HIV and their extended life expectancy means there will be more employees on the job with HIV in the future. This, in turn, means that most, if not all, businesses will eventually have to deal directly with HIV-infected and AIDS-afflicted employees.
GOVERNMENT AGENCIES AND POLICIES RELATING TO AIDS
The Business Responds to AIDS (BRTA) program was formed in 1992 as a public-private partnership among the CDC, the public health sector, other organizations and agencies, and business and labor to provide workplace education and community services in order to prevent the spread of HIV. The BRTA program assists businesses of all sizes in the creation and implementation of workplace-based HIV and AIDS policies. In addition to education, service, and prevention of the spread of HIV, the program's goals are to prevent discrimination and foster community service and volunteerism both in the workplace and in the community. In order to achieve these goals, the BRTA has developed materials and technical assistance to help businesses form comprehensive HIV and AIDS programs, including training for management and labor leaders and education for employees and their families.
Corporate HIV and AIDS policies and practices should comply with federal, state, and local legislation and Occupational Safety and Health Administration (OSHA) guidelines. Federal laws regarding AIDS in the workplace include: the Occupational Safety and Health Act of 1970; the Vocational Rehabilitation Act of 1973 (VRA); the Employee Retirement Income Security Act of 1974 (ERISA); the U.S. Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA); and the Americans with Disabilities Act (ADA) of 1990.
The ADA, which applies to any company with 15 or more employees, forbids discrimination against any employee affected by a disability or chronic disease, including AIDS. It defends people who are infected, people perceived to be at high risk, and relatives and caregivers of people with AIDS in matters ranging from hiring and promotion to resignation and retirement. Basically, employers cannot treat employees who are affected by AIDS any differently than other employees, and they are required to provide appropriate accommodations whenever possible. The ADA does make a slight exception for restaurants, however, in that they are permitted to reassign employees with HIV or AIDS to positions in which they are not required to handle food.
In 1998 the U.S. Supreme Court also stipulated that asymptomatic HIV patients (those without visible signs of illness) should be included under the Americans with Disabilities Act. The Court ruled in a 5-4 decision (in Bragdon v. Abbott) that asymptomatic patients should still be covered by the ADA because HIV infection interferes with "major life activities"—in this case, the major life activity of reproduction.
PROACTIVE AIDS POLICIES FOR BUSINESSES
Despite the growing impact of AIDS and AIDS-related illnesses on American businesses, very few companies are aware of their legal obligations to affected employees or have enacted policies to ensure compliance with the law. The Centers for Disease Control (CDC) has a program called Business Responds to AIDS, that provides detailed recommendations for companies on how they can establish and implement a simple AIDS policy.
An AIDS policy is used to clarify a company's consistent response to issues of HIV/AIDS in the workplace. The CDC strongly recommends having an employee HIV education program available to all employees. Such an educational program can reduce fear, prevent discriminatory behavior which may invite lawsuits, and prevent loss of productivity if trouble erupts when an employee discloses his or her HIV or AIDS status.
In its relatively short history, AIDS has become the most litigated health concern in American legal history. The majority of these lawsuits are employment related. Having a well designed AIDS policy can help clarify a company's position for all parties and can help to avoid the situations that arise and often lead to litigation. A good policy will assist with management questions, HIV-infected employees, and all of his or her co-workers. The following are five actions which should be covered and documented in a solid AIDS policy.
- Show compliance with the law. State that your company adheres to the Americans with Disabilities Act and its protections for people with HIV, including acceptable performance standards, nondiscrimination and reasonable accommodation.
- Provide educational materials on HIV/AIDS. Policies should contain a component stating that HIV/AIDS is not transmitted through casual contact, and that employees with HIV/AIDS are not a health risk to their co-workers. Invite employees to receive more information on HIV through human resources, or state there will be regular employee education.
- Protect all employees. Assure employees that their individual health status is confidential, private and not to be disclosed. Also state that the safety of all employees is of utmost importance.
- Give clear direction. State where employees should go with questions about HIV transmission, and from whom supervisors should get direction on dealing with HIV issues in their department.
- Disseminate policy information. Be certain all employees at all levels read and understand your AIDS policy.
The prevalence of HIV and AIDS in the U.S. population was estimated by the CDC in 2002 to be 1 in every 268 people. The prevalence is highest in the age group 25 to 44 years of age and AIDS has surpassed cancer and accidents as the leading cause of death for persons in this age group. It is clear that most companies will at some time deal with an employee who is HIV-positive or has full-blown AIDS. Having a clear and well-publicized AIDS policy in place in companies of any size is desirable in avoiding misunderstandings and legal liability that may arise in the absence of an established policy.
"AIDS Presents New Challenges for Employers." Employee Benefit Plan Review. March 1998.
Alcamo, I. Edward. AIDS in the Modern World. Blackwell Publishing, 2002.
American College of Occupational and Environmental Medicine. HIV and AIDS in the Workplace. 2002.
Barnett, Tony, and Alan Whiteside. AIDS in the Twenty-First Century. Palgrave, 2002.
Zachary, Mary-Kathryn. "Supreme Court Resolves Questions, Raises Others, with HIV Ruling." Supervision. November 1998.
Hillstrom, Northern Lights
updated by Magee, ECDI