The following workplace scenarios depict situations that HR professionals could find themselves dealing with as they handle day-to-day activities.  Also included are related questions.  We've consulted with experts in the field to provide answers to these questions and insight on how to best handle each scenario.  

Scenario #1:  In a small middle American community, Dianna is a general manager supervising the organization’s 20 employees.  She is close to one employee, a young woman, Claudia, who has recently told her that she and her husband are HIV positive.  In fact, her husband has AIDS and is in very poor health.  Claudia, however, is in relatively good health and is able to work full-time.  Dianna is concerned that other employees will refuse to work with Claudia because they may guess her condition as her husband’s health worsens and becomes the subject of local gossip.  Further, while Dianna knows that she should not disclose Claudia’s condition, she fears that coworkers may complain and even initiate lawsuits alleging their “right to know.”  

Questions/Points: 

For answers to these questions, we turned to Deborah Keary, SPHR, director of SHRM's Information Center. In Deborah's nine years of answering questions for SHRM members, she has responded to many questions about HIV/AIDS-related workplace situations.  

Should Dianna issue a policy that addresses these issues and what information should it include?  

Yes, every company that has policies should have in place a policy that addresses how communicable diseases should be handled in the workplace.  (Keep in mind that no one should ever write a policy just to address a single workplace situation - good policies are thoughtfully written before situations arise, not in response to them!)  However, this company does need a policy that deals with treatment of employees who are HIV positive. 

A good policy would include, at a minimum, these points: 

• The company complies with the requirements of the Americans with Disabilities Act, including offering reasonable accommodations to qualified persons with disabilities;
• The fact that HIV/AIDS does not present any risk to co-workers in normal work settings, and is not transmitted through casual contact;
• Co-workers are expected to maintain working relationships with  people who have HIV/AIDS.  Refusal to do so will be a cause for disciplinary action, just as any refusal to work would be treated.  Any co-workers with concerns should contact the human resources department for guidance;
• The fact that employees' medical information is private and confidential, and people with HIV/AIDS are not obligated to share this information with managers or co-workers.  It is a violation of the ADA to tell co-workers that a person has HIV/AIDS, or any illness or disability.   Confidentiality must be protected, and anyone who violates this policy will be subject to disciplinary action.

What steps can Dianna take to minimize her organization's exposure to lawsuits, even groundless ones? 

Dianna should make education about HIV/AIDS a top priority for training the entire staff of her company.  Training should include facts about AIDS and other communicable diseases, and the requirement for sensitivity to people who have those conditions.  The training could include the employer's response to AIDS, so that employees know what to expect as the company offers reasonable accommodations, the person with AIDS becomes ill, or people with AIDS recover and return to the workplace.  It should include the idea that the company fully expects employees to respond with compassion to people who are ill, and to continue normal relationships with them. 

Obviously the company must comply with the Americans with Disabilities Act in its response to people with AIDS.  The Supreme Court ruled in a recent case (July 1998) that HIV - before it becomes AIDS - is a disability, and people with HIV are entitled to the full protection of the ADA.  This includes keeping medical information confidential, and providing reasonable accommodations to people with HIV/AIDS.  

In workplace settings where employees may be exposed to human blood or bodily fluids, the company must comply with the provisions of the OSHA Rule on Occupational Exposure to Bloodborne Pathogens. 

The company should take steps to protect the privacy of any medical information about any employee, and make sure it is kept in a separate place, available only to a very limited number of people who have a need to know.  All employees should realize that medical information is extremely confidential. 

The Company should treat people with HIV/AIDS just the same as they would any employee who has a serious or life-threatening illness, and make sure everyone knows the company policy. 

Dianna should contact legal counsel for more specific advice. 

What should Dianna's response be if there is gossip at work about Claudia, who has become a close friend? 

Given the critical nature of employee privacy about medical conditions, Dianna should take positive steps to find out the source of such gossip and put a stop to it.  The HR professional should always try to put a stop to malicious gossip, regardless of friendship with the subject of the gossip.  The rumor mill is always present, but with proper training on HIV/AIDS, a proactive company policy and a positive work environment, malicious gossip can be minimal.  

Scenario #2: Lauren is a bus driver working for the city's local transportation authority, which is currently recruiting for new drivers. Lauren recommends to a friend, Steve, that he apply at the District's Regional Depot. Steve, who is HIV-positive, submits an application for employment, is interviewed, and offered a position, but not without agreeing to provide a blood sample for pre-employment HIV antibody testing.  Steve, in desperate need of a job, agrees to the testing and signs the necessary paperwork. 

Shortly after starting with the transportation authority, Steve learns from a coworker during lunch that it is only new hires who are tested for the HIV antibody.  He also learns that the related records are actually kept at each local depot, where it can be accessed by the head dispatcher, instead of being released only to the Division Supervisor, who manages the regional operations.  

Questions/Points: 

For answers to these questions, we turned to Peter Petesch, an SHRM member, who is with the Washington, D.C. office of Ford & Harrison, LLP -- a nationwide law firm representing  management in labor and employment matters.  Peter is also a member of the Business Responds to AIDS Partners' Board of the CDC, and received the CDC's 1997 National Business and Labor Award for Leadership on HIV/AIDS.  Peter writes and speaks frequently on ADA issues affecting management.  Ford & Harrison's web site  (www.fordharrison.com), Labor and Employment SourceBook, and Management Update newsletter contain useful information on legal challenges to management, including managing disabilities generally and HIV/AIDS in particular. 

1. What are the legal issues?  Is testing for HIV in this situation legal? 
2. What could be the rationale for pre-employment testing? 
3. What could be the rationale for testing all employees and not just new hires? 
4. What are the confidentiality issues?  How would you handle them? 

Although Steve may or may not yet have a viable cause of action against the transportation authority, there are both legal and practical considerations that should discourage most employers from engaging in HIV testing at any stage.  In assessing the wisdom of medical inquiries of employees and applicants, employers need to ask themselves:  

 (1) Is it legal? and  

 (2) Is it worth it? 

First, depending on where the transportation authority is located, state or local laws may bar or severely restrict HIV-testing.  California, Florida, Illinois, Massachusetts, and Texas are among the states with laws addressing HIV testing.  Second, the Americans With Disabilities Act prohibits medical inquiries and testing at certain stages, and restricts them at other stages in the employment relationship.  

Second, the Title II of the ADA and the Rehabilitation Act cover the transportation authority.  (Title II of the ADA covers, among other things, employment practices by public entities and instrumentalities such as the transportation authority.  Title I of the ADA covers employment practices by private employers of 15 or more.  The employment-related requirements under the two sections are substantially similar.  For the benefit of the SHRM members, the Title I and Title II analysis and recommendations may be lumped together.)  Basically, the ADA restricts medical testing and inquiries as follows:¹ 

• Pre-employment medical inquiries of applicants are prohibited.
• Once a conditional offer of employment is made, broad based medical inquiries are permitted so long as they are made for all similarly situated persons.
• Medical inquiries of current employees may be made (a) incident to the employee's request for a reasonable accommodation under ADA or (b) to resolve objective, job-related concerns over safety and health.
• Once an employer has an employee's medical information, the information must be kept confidential.  The EEOC explains that "[t]he employer may only share the medical information with individuals involved in the [decision making] process who need to know the information.  It is not always appropriate for every person involved in the decision-making process to be informed about an [employee's] medical-related information."  Finally, the medical information must be maintained in a secure, separate file and not placed in an employee's non-medical personnel file. 

Both the ADA itself and the EEOC's interpretive guidance on ADA conclude that pre-offer medical inquiries are unlawful.  One federal court of appeals held that an individual may not have a cause of action for damages simply because the employer violates the ADA's prohibitions against pre-employment medical testing and inquiries (without otherwise acting unlawfully based on that information).  See Armstrong v. Turner Industries, Inc. (5th Cir. 1998).  The EEOC takes the opposite view², and it is not clear that all federal courts will agree with this one court's decision.  After all, inconsistent court decisions are fairly common under the ADA's steep learning curve.  Relying on this one court decision (and ignoring the ADA's and EEOC's restrictions on pre-employment medical inquiries and examinations) is therefore a risky course of conduct for an employer. 

Legal But Risky Medical Inquiries at the Post-Offer Stage 

At the post-offer stage, the medical inquiries do not necessarily need to be tailored to business necessity but, for the many reasons described below, probably should be.  In the case of a bus driver, job-related medical inquiries for conditional offerees might include questions on medications with side-effects or conditions (i.e., epilepsy or diabetes or vision/hearing impairments) that may (albeit not always conclusively) impair the ability to drive a bus safely.  HIV testing does not appear to be job-related for a bus driver.  

At the post-conditional offer stage, broad-based medical inquiries of all similarly-situated employees (including HIV testing) may be technically legal under the ADA.  If, however, an employer performs the HIV test at this post-conditional offer stage and then revokes the offer, the EEOC or a court may infer that the revocation was the result of the HIV test and because of the individual's disability.  In this case, the employer should be ready to argue and/or show that (1) the revocation was for another, non-discriminatory reason; (2) the individual was not "otherwise qualified" for the job; or (3) the employee posed a direct threat to his or others' safety and health that could not be alleviated through a reasonable accommodation.  In the case of a bus driver (assuming that he is not taking medications that would impair his ability to operate a bus safely), the employer would have a difficult time coming forward with objective medical evidence demonstrating this safety/health threat.  

Obtaining HIV-related information at the post-offer stage (much less acting upon it) therefore creates a variety of immediate and longer term legal risks. 

Testing Current Employees? 

Given the stricter, job-related requirements for testing or making medical inquiries of current employees (in contrast with offerees), there is even less legal justification for testing all employees and not just new hires.  One recent decision, however, questioned the extent of an employer's onus in requiring medical testing of current employees.  In EEOC v. Prevo's Family Market, Inc. (6th Cir. 1998), one court of appeals held that it was not unlawful for a grocery store to have dismissed an HIV positive employee after the employee refused to submit to a medical examination.  The employee had disclosed his HIV-positive status incident to requesting a scheduling accommodation.  The employer became concerned about (1) the employee's use of knives (which often result in cutting incidents) in preparing produce and (2) the employee's susceptibility to other opportunistic infections, such as tuberculosis.  The employer required the employee to submit to an examination to confirm his HIV status and to opine on the degree of risk the employee posed to customers and co-workers in the produce department.  The employee refused to cooperate. 

In spite of overwhelming medical evidence from the CDC and other sources on the minuscule risk of HIV transmission, the court held that the medical examination was job-related and consistent with business necessity.   The court further held -- contrary to the urging of the EEOC -- that the employer had no duty to ascertain the most up-to-date medical knowledge possible as a prerequisite to demanding a medical examination.  The issue in that case was not whether the employer has a right to require a medical examination, but rather, whether the employer had a sufficient, reasonable basis to proceed with requiring a medical examination.  The EEOC supports a more stringent, "reasonableness" standard looking to accepted medical knowledge. 

Employers should not necessarily depend on the looser standard in this case being adopted in all circuits, and should not assume that wide-ranging medical inquiries of employees will be permitted under the ADA.  The safer practice by far is to keep requests for medical information grounded in business necessity and justified by current medical knowledge. 

Even in the jurisdiction in which the Prevo's case was decided, testing of all employees (in contrast with testing of a single employee who requested a reasonable accommodation) may be distinguishable and unlawful.  Adding all employees to the testing program in Scenario 2 therefore does not solve the problem; it compounds it.  

The Practical and Legal Dangers of Having Unnecessary Employee Medical Information 

Even if the test were at the post-offer stage and legal under both the ADA and state or local laws, having the test results can only harm the employer.  First, having the employee's medical information carries an obligation to maintain its confidentiality.  Entrusting dispatchers with the medical information may violate the ADA (which warrants keeping medical information in separate files and restricting access to persons with a real need to know, and not necessarily front-line supervisors).  Broader dissemination of this information creates a greater risk that confidentiality will be breached, or that a front-line supervisor could act inappropriately (i.e., take an adverse employment action or harass the employee) based on the information. Tougher liability standards in all workplace harassment cases therefore warrant more careful safeguarding of employee medical information, particularly for conditions carrying a social stigma.  In this case, not having the information could be a benefit to both the employer and the supervisors.  As a practical matter, the fewer people who know about an employee's medical condition such as HIV, the fewer opportunities exist for improper disclosure (raising implications under both ADA and common law actions for invasion of privacy) and other improper actions. 

Second, if the employer ever took an adverse employment action against Steve, Steve could argue that the action was taken because of his protected status (a qualified person with a disability).  Under the Supreme Court's Bragdon v. Abbott decision, virtually all persons with HIV/AIDS are likely to be held "disabled" within the meaning of the ADA.  With an "invisible disability" like HIV/AIDS, an employer would have to know or believe that the employee is disabled in order to discriminate against the employee.  Having information on Steve's HIV status would help Steve clear this legal hurdle if he were ever to claim disability discrimination.  Moreover, the EEOC and perhaps a court might presume that because the employer asked for the HIV-related information at the post-offer stage, the information must somehow matter to the employer.  This, too, is a dangerous inference to the employer should Steve or any other employee ever claim discrimination on the basis of HIV status. 

In other words, there is some information that employers simply may not wish to know -- information that confers "protected" status to persons previously not thought to be disabled, and information that carries an obligation to keep confidential. 

Testing for HIV and maintaining the information could therefore haunt the employer in the long run, with no short-term advantages.  If an employer is considering HIV testing at the permissible stages in the employment relationship, the employer should only do so if justified by business necessity.  It is not likely that any such business necessity exists in the case of the transportation authority.  

Employers should review all of the considerations described above when contemplating not only HIV-related tests and inquiries, but also all other medical examinations and inquiries of applicants and employees. 

²Although courts do not always embrace EEOC interpretations of the ADA in interpreting obligations under the ADA, many courts have held that the EEOC's interpretations are presumptively valid.  The Supreme Court bolstered this approach in looking to the EEOC's and other federal agencies' interpretations of the ADA and the Rehabilitation Act in holding that asymptomatic HIV is an ADA-covered "disability" in Bragdon v. Abbott.  The EEOC, which enforces the ADA with respect to private employers, will undoubtedly attempt to persuade other courts to reject the holding in the Armstrong case in bringing other cases over pre-employment medical inquiries.  Though the EEOC's views on the ADA are not entirely conclusive, employers should therefore take the EEOC's interpretations of the ADA and its obligations very seriously. 

Scenario #3: You are the Division Head for a large chemical plant that is part of a Fortune 500 company.  Because of the nature of your business, there are a number of medical facilities on site to handle medical emergencies and accidents.  You learn through the grapevine that a nurse stationed at one of the infirmaries has been diagnosed with the AIDS virus and that some employees are worried.   How would you handle this situation?  

Questions/Points:  

For answers to these questions, we turned to Nancy L. Breuer, M.A. Ms. Breuer designs and delivers workplace HIV education and writes about HIV and other health issues from Los Angeles, California. With television writer Burt Pearl, she is the author of the video-based workplace HIV seminar, "The Positive Workplace: Managing HIV at Work", distributed by the National AIDS Fund.  

What should you do to address the rumors?  

Whatever the grapevine may suggest, any large employer must assume that it employs several people with HIV. The current estimated rate of HIV infection in the U.S. is one in 265 people, according to the Centers for Disease Control and Prevention. Because most infections are concentrated among people of working age, we have to assume that the rate of infection in the workplace is higher.  

Business experience demonstrates that employees with HIV disease can continue to be productive, contributing members of the workforce, especially in a supportive workplace. Employee and management HIV training and a sound HIV policy can prevent both discrimination and disrupted productivity.  

Unaddressed rumors about an employee with HIV who is a health care provider usually worsen, and can lead to discrimination or even panic. Most Americans of working age have some memory of the alleged (but never documented) infection of five patients by a South Florida dentist who had AIDS in the early 1990's¹ and are fearful of an HIV-positive health care provider. The employer must take seriously the potential risk to the well-being of the presumed HIV-positive nurse if employees do not receive reliable information about HIV as a workplace issue.  

Some employers hesitate to offer workplace HIV education when rumors are circulating for fear of “drawing attention” to the infected employee.  

Response: The infected employee is already a center of attention, most of it negative. Reliable education draws attention away from the employee rumored to be HIV-infected and toward the information everyone needs to avoid HIV infection or respond appropriately when it arises. 

Response: Employees will not “settle down” without reliable information. The fear will go underground and emerge, most often, as discrimination against the employee believed to have HIV. 

• 63% of working Americans state that they would be uncomfortable working with someone with HIV, according to a survey conducted for the National AIDS Fund late in 1997. 24% think they should be uncomfortable.² 
• In the survey, 21% of those surveyed believe that an HIV-positive employee should be fired or put on disability leave at the first sign of illness.³ 
• If the education is mandatory, the company communicates a clear standard to employees that discrimination against an HIV-positive co-worker will not be tolerated. Similar measures are commonly taken when the employer must communicate a clear policy about sexual harassment or racial discrimination. It is likely that an attorney would advise an employer to reduce the likelihood of discrimination by making the education mandatory. Mandatory education also would strengthen the employer’s position in case such a charge were made. 
• Even a small number of uneducated employees can seriously undermine the effects of reliable HIV education among other co-workers. In the current climate of distrust of authority, especially information from the government, many Americans have capillaries of doubt just under the surface of their educations about HIV. 
• Medical information in the workplace is confidential. No employee has the right to disclose or spread rumors about the diagnosis of any other employee at any level. Many workplaces reflect double standards about confidentiality when they assert it on one hand and then ask employees returning from an illness what they had on the other hand.⁴ 
• Employees who do not know about medical confidentiality need to acquire that knowledge in a training environment where they can ask questions about its application. Most employees, in my experience, believe that medical information is confidential except when someone thinks that others have a “right to know.” Employees in a chemical plant where a nurse is rumored to have HIV could easily construe that as a “right to know” situation. It is not. 

This question comes to the heart of the issue. Co-workers who do not understand clearly how HIV is and is not transmitted are likely to perceive any co-worker living with HIV as a risk to them. Such fears are worsened when the co-worker is a health care worker who performs procedures that involve blood, such as administering first aid or giving injections. Co-workers need ongoing access to these facts from a reliable source:  

• HIV is transmitted from one person to another only in these ways: 
1.  Unprotected sex with an infected person  
2.  Sharing contaminated needles with an infected person  
3.  Birth to, or breastfeeding from, an infected mother  
4.  Receiving a contaminated blood product  
 
• Universal precautions protect infected blood, semen, vaginal fluids or breast milk from causing a new infection. In the health care setting, universal precautions include: 
1.  Treating all blood as if it is infectious  
2.  Always using a non-permeable barrier when blood is present  
 
• The number of documented cases of HIV infection from a health care worker to a patient in this country is zero.

  
• The health care worker runs a far higher risk of infection from a patient. The number of health care workers with documented occupationally acquired AIDS or HIV infection reported through December 1997 in the United States was 54, with 132 cases pending investigation.⁵ 

• When a health care worker has HIV, the health care worker runs the far greater health risk in the workplace simply because of his or her damaged immune system. Depending on the extent of that damage, the HIV-infected health care worker may risk dangerous contact with such diseases as chicken pox, measles and mumps from employees who may have been exposed recently.

More than seventeen years after the emergence in the United States of what is now called AIDS, there are many fine examples of successful, tested workplace HIV policies. The best include these features.  

The policy:  

• is fully consistent with the employer’s mission and corporate values, and states that consistency clearly
• reviews the medical facts
• explains how HIV affects the immune system 
• explains why an HIV-infected person does not present a threat to the health of others
• accurately states the principles of the Americans with Disabilities Act and other nondiscrimination laws
• applies those principles to situations the company is likely to face
• includes training in universal precautions to prevent exposure to bloodborne pathogens 

Even with a strong policy and reliable workplace training, some employees may have difficulty overcoming their fear of an HIV-infected health care worker. These employees need follow-up with a counselor from an HIV-knowledgeable employee assistance program. Their supervisors must set clear goals for them to prevent discrimination against the health care worker. If they do not achieve their goals, and if they act in a discriminatory manner toward the HIV-infected health care worker, then they subject themselves to progressive discipline, up to and including termination.  

²Employee Attitudes About AIDS, 1998, A National Survey: What Working Americans Know and Think about HIV/AIDS, summary of data reported by Opinion Research Corporation International for the National AIDS Fund, November 1997.  

³Employee Attitudes About AIDS.  

⁴A careful review of written policy and supervisors’ practices concerning employees’ illnesses is a good idea. Are employees returning from an illness asked their diagnoses? Do supervisors ask what they have when they call in sick? Do supervisors relay that information to co-workers?  

⁵HIV/AIDS Surveillance Report, U.S. Department of Health and Human Services, Public Health Service, Centers for Disease Control and Prevention, Year-end edition, Vol. 9, No. 2, table 16, p. 21.   

⁶Employee Attitudes About AIDS. 75% of respondents in the 1992 survey and 73% in the 1997 survey said that their employer should offer AIDS education in the workplace.