Dealing with HIV-Positive Employees: Why It Requires Due Diligence

Health issues are a fact of life. At some point, most employees will experience some sort of health scare or be diagnosed with a serious or chronic illness.

For the majority of employers, not only is it tough to handle the legalities and loss of productivity that health issues invariably raise, but we also genuinely don’t want our valued people to have this sort of worry and stress.

Those concerns are all valid and apply in all cases, but they’re even more relevant when it comes to incurable diseases, like HIV. Here’s what you need to know, as an employer, about what your rights and responsibilities are, and how due diligence can help answer some of your questions.

HIV and Discrimination

It’s not possible to solve the issue of dealing with HIV in the workplace by simply requiring medical screening and not hiring anyone who is positive. Not only are there very tough restrictions on when you can require medical screening for most jobs, but if you don’t hire a qualified candidate because of their HIV status, you could be guilty of discrimination, and you might well be sued.

Like most other diseases and disorders, it’s illegal to exclude or fire candidates or employees simply because of their status. Just don’t do it.

Requesting Medical Screening

When it comes to pre-hiring due diligence, you usually cannot request medical screening at all. In fact, the U.S. Equal Opportunity Commission has some very strict guidelines about medical screening.

– You may not ask most employees to take a medical screening test before you hire them.

– You also may not enquire about the nature of a particular visible disability.

– You may ask the candidate how they would go about performing the job.

– You can make a job offer, on the condition that the applicant undergoes screening or answers certain health questions.

– If you do make this a condition of hiring, it is only allowed if all employees who are hired in similar positions must undergo the same screening.

– Once hired, employers may request medical screening only if it’s to accommodate an employee, or if there is a question about the employee’s ability to complete their work safely.

In all cases, relevance of the health questions and testing is key. If there is no reason for you to know, you can’t ask. It is really that simple.

Privacy Issues

If you do discover that someone you have hired is HIV positive, for instance, if they ask for modified work due to their condition, then there are some privacy issues you need to address. Under no circumstances can you disclose anything to do with your employee’s health to any other member of your team, and you need to make completely sure that their privacy is protected at all times.

Modified Work

In certain cases, an HIV diagnosis may impact an individual’s ability to do their job. Examples of this would be in specific medical fields, when working with children or in physical work environments.

In every case where this happens, the onus is on the employer to attempt to find an alternative position for the employee, where their condition will not be a factor, such as an administrative role.

If an employee does disclose their health condition to you, you are allowed to ask their doctor whether there are any risks to the employee, other staff or the public if that employee continues to work in their existing or a modified role.

Regardless of what happens, dealing with employees with serious health conditions in the workplace is tough, but with tact, compassion and planning, but with due diligence you can make difficult situations work.

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