Introduction

    Today’s workforce presents complex issues for the average employee. But for the employee who has learned that she or he has tested positive for HIV/AIDS, the issues become even more convoluted. Most persons within the workforce need only to be aware of their job performance in order to maintain job security. The employee whose HIV status is positive, not only has to maintain a satisfactory job performance, but also must struggle and ponder over what a possible disclosure could mean for job retention and workplace climate. It is important to address the concerns of employers and coworkers who share a workplace environment with an employee with HIV/AIDS. Questions such as who shall cover the health care expenses for infected employees and what part, if any, should management take in providing coworkers education and counseling in order to diffuse any fears of contracting the virus from their counterpart. There is a great need for there to be HIV/AIDS policies in the workforce, for the majority of people with HIV/AIDS are in the prime of their lives and are the foundation of the workforce.

Background

    The realities of the HIV/AIDS crisis in America and its impact on the strength of the workforce demand an immediate attention. The realities that face an employees when they learn of a positive diagnosis are compounded by a many of issues. The striking fact that 80% of reported AIDS cases occurred in persons between the ages of 25 and 44 years old. Where work and productivity are concerned, it is within this age group that employees are regarded as being in their prime. According to Jorgensen and Cole in their article entitled “The Health Effects of work site HIV/AIDS”, 54% percent of the total American workforce percent is made up of workers from this demographic group. The many implications of these numbers are profound as both employers and employees must consider the increasing likelihood that persons within their work environment will be diagnosed with HIV/AIDS. Rather than battling through typical, indeed predictable issues such as wage and benefit disputes with employees, today's employer may well struggle with the reality that an employee with HIV/AIDS will require additional time away from the job while also requiring increasingly expensive medical treatment. The cost of current medication regimens, and the financial burden of regular trips to doctors and even extended hospital stays, will make it problematic at best and impossible at worst, to find affordable coverage for employees. The expense and difficulty finding an insurer willing to maintain individuals with any kind of life threatening disease will be exaggerated when a participant in some kind group coverage such as an HMO, suffers from a grossly misunderstood disease.

Employee Attitudes

    Pryor, Reeder, and McManus cite in their article entitled “ Fear and Loathing in the Workplace”, employers will also have to contend with the reaction of an employee's coworkers. Ignorance, misinformation and outright bigotry are plentiful in any discussion of HIV/AIDS, regardless of income, race and in many cases, educational achievement. The issues that face a worker who has learned that they have tested positive for HIV/AIDS are numerous and complex. One immediate fear may be that self-disclosure of the illness will jeopardize current and future employment. A PWA must also consider if disclosure will not only place her or his employment in danger, but that disclosure will expedite the loss of medical benefits. In an article named “ AIDS and HIV Infection in the Workplace”, L.A. Cone states that harassment at the hands of coworkers is yet another consequence to consider if and when a person decides to make others aware of their medical status. One may be neither gay nor lesbian or a person who is an IV drug user, but misinformation, fear and values may color a coworkers ability to believe otherwise. Cone continues to observe that although a person with HIV may show no symptoms and still be performing all job tasks in a satisfactory fashion, she or he may still be perceived as having an impairment that employers and employees alike wrongly believe. As a result this perception will make it impossible to fulfill one's job responsibilities . Finally, an employee with HIV/AIDS must contend with the fact that she or he may be looked upon as an object of fear and scorn. Coworkers may wrongly believe that others are in serious danger of being infected by their colleague. Unfortunately, this only creates unwarranted concern and hysteria, yet another significant and very real stress factor in the life of a PWA. In order to effectively deal with the negative consequences that a PWA may experience from workplace disclosure of her or his illness, a comprehensive analysis must be conducted to further explore the issues that both employees and employers will inevitably encounter. Due to the historical role of the courts and the increasingly activist role of the federal government in addressing issues pertinent to people with disabilities, the efficacy and efficiency of the existing legislative framework and the still limited judicial role are the logical places to begin this analysis.

The Rehabilitation Act of 1973 and the Americans with Disabilities Act (1990): Legislative Relevance to Persons with HIV/AIDS

Obrien and Schiro-Geist in their article entitled “Primary, Secondary, and Tertiary direct threat”, explain that because of the complexity of the issues confronting a PWA who is in the prime of her or his work life, one may attempt to ignore the diagnosis and fail to relate their HIV/AIDS status to an employer and co-workers/colleagues alike (Fear of unemployment, loss of medical benefits, harassment, and the ever - present danger of being falsely perceived by both an employer and fellow co-workers as not having the ability to complete job tasks are just a few elements which influence the typical PWA to remain silent about their illness. Unfortunately, a lack of awareness of the basic elements of protective legislation is what keeps employees with disabilities and serious, life threatening illnesses ignorant of their rights and options. The results of the National Organization on Disability's 1994 Survey of American's with Disabilities found that only 40% of Americans were aware of such disability legislation as the Americans with Disabilities Act (1990) and the Rehabilitation Act of 1973. Above all else, it is vital for a PWA in the workforce to recognize that she or he is protected by the Rehabilitation Act of 1973 if employment is on the federal level or if his or her employer has a contract with the federal government that exceeds $2,500. Under this legislation, an employer is prohibited from discriminating against handicapped persons who are otherwise qualified, solely on the basis of their handicap. This information, provided by Hale in the article “Employer Response to AIDS in a Low-Prevalence Area”, may be enough to assure the informed worker who is diagnosed with the virus, that she or he cannot be dismissed from a job for disclosing their health status to an employer.

The Rehabilitation Act of 1973 also states that an individual qualifies as handicapped if she or he is regarded as having impairment. Cone shares that this aspect of the legislation applies to someone whom, in a workplace setting, is treated as if limited in major life activities, or the limitation on activities is a result on the attitudes of others. This interpretation of the Act is important for a PWA who fears that an employer will perceive them to be incapable of completing tasks that are required by the job description. The fact of her or his positive diagnosis, regardless of how advanced or asymptomatic the progression of the disease may be, is likely to provoke fears for job security and medical benefits. The employee may also fear that she or he will be passed over for salary raises, job promotions, or appointments to special projects if the supervisor knows about a positive diagnosis. Finally, reactionary and ignorant attitudes, manifesting themselves in the forms of harassment and intimidation, can place limitations on the activities that a PWA can complete at the work site.

Hale cited one notable case, an employee filed a lawsuit against his supervisor at an undisclosed place of employment for forcing him to reveal that he was infected with the AIDS virus. During this time, as a result of hostility and fear, employees staged a walkout, halting all work-production within the company. This decision had a profound impact on the amount of work the employee was able to complete although he continued with his tasks as normal. After the walkout was resolved, he continued employment with this company. It could be successfully argued that the level of job performance he achieved before the forced disclosure was never achieved again because of the great hostility generated against him.

Although it took almost two decades, the government recognized that there was a large number of working Americans excluded, indeed ignored by the Rehabilitation Act of 1973. Despite vociferous protest from members of the extreme right of the Republican Party to exclude PWA within the Americans with Disabilities Act of 1990 (ADA), this piece of legislation was passed in both Houses of Congress and signed into law by President Bush in 1990. O’Brien and Schiro-Geist briefly review that the ADA is designed to protect PWA from discrimination in five arenas: employment, transportation, access to mass telecommunications such as telephone service, public accommodation, and the business of local and state government. The ADA mandates that reasonable workplace accommodation be given to PWA. An example of providing reasonable accommodation to someone could be as simple as assigning an office to an employee with paraplegia that is on the first floor of a building without an elevator and ensuring wheelchair ramp access at one or more building entrances. In the case of PWA, it is logical to assume that physical access to the workplace can be attained with minimal effort or that the physical environment is free of airborne health hazards that could provoke secondary infections in a weakened auto - immune system. As far as PWA and their social and legislative advocates are concerned, employers should not regard the employee with AIDS/HIV as any different from a person with a physical handicap when providing them with reasonable workplace accommodations. Visually and relative to job performance, the employee may appear to be in satisfactory health, though the employee may need to take sick days in order to make doctors appointments or to attend to physical ailments that may not be obvious upon a superficial visual examination.

“The ADA refers to direct threat as an employer defense to alleged discriminatory decision making that protects businesses from being forced to hire or retain and individual who may pose a threat to self, others, or both within the work place”, O‘Brien and Schiro-Geist explain. .While there are very few occupations that would place an employee or customer at risk of contracting HIV/AIDS, there is legitimate cause for concern of a primary direct threat if a PWA is employed within the medical or other health care fields. If her or his occupational role demands participation in (for example) invasive, subcutaneous medical procedures as essential features of the job description, the absence of HIV infection can be argued to be a fair and realistic qualification. The possibility of transmitting the virus when participating in a medical procedure is very real and scientifically valid. In virtually any other situation this may appear to be intrusive and violate an employee's basic civil rights. In the case of medical and other health care providers such as dental assistants and public health workers providing vaccinations, one could face the very real possibility that she or he will be legally bound to provide evidence that her or his HIV/AIDS status is negative.

Workplace Safety Issues and Concerns

Safety, rather than contamination becomes the issue that employer and employee must struggle with. O'Brien and Schiro-Geist state that it is legal to deny airline pilots medical permission to fly should they be diagnosed with AIDS. Medical research supports the belief that disruptions of cognitive ability and spatial and depth perception are associated with PWA. By the same token, it could be argued that HIV positive pilots that are asymptomatic may not yet suffer from the sorts of cognitive dysfunctions associated with HIV/AIDS and secondary infections. However, if one considers the perspective of the enforcement of employee/consumer health and safety, there are supportable arguments to sustain, which could otherwise be viewed only as discriminatory employment practices.

Many employers appreciate and understand that an employee with HIV/AIDS poses no threat as far as contamination and contagion is concerned. Unfortunately however, many are also influenced by concerns that coworkers may present or by the potential loss of clientele if customers ever receive the knowledge that a PWA is employed by the company. As mentioned earlier, the impact of this ignorance and bigotry can be especially devastating to a retailer or service provider.

O'Brien and Schiro-Geist are quick to point out that the only reason why PWA experience difficulty with secondary infections is because the HIV virus has destroyed her or his auto - immune system. These secondary infections pose little or no threat to other, uninfected employees because their immune systems are in adequate condition to ward off the sort of opportunistic (usually bacterial, such as pneumonia) infections that prey upon the immune deficient PWA. It is not often that a PWA intentionally poses a direct threat to third parties, though the few, frequently horrific examples of infection through neglect or willful intent colors the mass perception of PWA. A responsive and responsible legal system and legislative program can do much to alleviate these usually irrational and unfounded concerns. On the other side of this legal, ethical and philosophical quagmire, some employers have utilized the "altruistic defense" in an effort to demonstrate that her or his work environment is not conducive to the health of an employee with HIV/AIDS. This defense usually fails, for all the employer would need to do is provide reasonable accommodation to lessen the danger imposed on the workers health.

There are many problems in placing excessive faith in judicial and legislative responses to resolve the workplace problems faced by PWA. The expense of civil litigation in the United States and the lengthy appeal system increases the likelihood that private sector employers will attempt to outlast the litigant financially. Though base in its extreme, the possibility exists that an employer on the losing end of an employment discrimination case will continue hopeless appeals in the hope that the PWA will succumb to their illness and a court ordered settlement will be difficult to enforce.

Hale contends undoubtedly that an employer who has a PWA within the ranks will ponder over the costs of employee benefits to a person with this diagnosis. While there are a plethora of myths and misinformation that is associated with the costs of health care coverage for a PWA, the economic costs associated with AIDS warrants employer concern. This is an era in which more efficient and more expensive treatments are being developed, both life expectancy and costs are expected to increase. Hale goes on to state that the estimates of the total lifetime health care costs for an individual AIDS patient range from $65,000 to $80,000.

Cole shares that currently there are very few work sites that have a formal HIV/AIDS policy. In a national survey of work sites with 50 or more employees, 22% reported having a formal HIV/AIDS policy. With these daunting numbers, one may wonder what place, if any, does HIV/AIDS education and sexuality education fit into companies. The need for such education is critical when a lack of accurate AIDS information and attitudes towards homosexuality contribute to hostility toward coworkers, states Summers, in the article entitled, “Determinants of the acceptance of coworkers with AIDS”. Pryor, Reeder, and McManus cited a study conducted within Illinois State University, 250 students were identified as having either acceptable attitudes of homosexuals or attitudes that were pejorative of homosexuals. The students were shown a film after which it was suspected by the principal investigator that persons with favorable attitudes towards homosexuals would have had positive reactions toward the film. Their counterparts were suspected to have less favorable attitudes of the film. If employers wish to create a more conductive work environment for PWA, it appears that anti-homosexual attitudes will need to be addressed. As part of new AIDS educational initiatives within the workforce, employers should seek out views of sexuality in order to assist in making the work site environment more favorable for PWA. These people can serve as advocates for employees with AIDS when needed.

Conclusion

The accommodation of people with disabilities in the workplaces of the nation is an essential component to the future success of this economy. The demography of the workplace and the demographic indicators of PWA indicate that it is in both the fiscal interests of the country, as well as for our long - term ethical health, to accommodate the workplace needs and aspirations of PWA.

The presence of a legislative framework to guide the Judicial Branch at all three jurisdictional levels is essential to combat the prejudices and ignorance that pervade the workplace and assault PWA in all aspects of their lives. Unfortunately, the weaknesses of relying solely upon the legislative and judicial branches of government to remedy this ignorance and fear are obvious. The cost and time involved in civil litigation make it difficult for a healthy person, let alone one suffering from a potentially life threatening illness, to move all the way through the appeals process.

The most effective way to deal with the issue of workplace accommodation of PWA is through education. While it could be argued that the HIV/AIDS epidemic has occupied a disproportionate position on the national stage, the potential economic costs, inside and outside the healthcare sector demand that all necessary steps be taken to eliminate the walls of ignorance faced by PWA in today's workplace. Further education, ideally through the public school system, the mass media and of course the workplace, buttressed by an enhanced legislative framework, will, over time, go a long way towards eliminating this tragedy from the workplaces of our country.

References

Cone, L.A. (1990). AIDS and HIV infection in the work place. Mental and Physical Disability Law Reporter, 13, 70-77.

Hale, P.J. (1990). Employer response to AIDS in a low-prevalence area. Family and Community Health,13, 38-45.

Jorgensen, C. & Cole, G. (1996). The health effects of work site HIV/AIDS: A review of the research literature. American Journal of Health Promotion, 11, 150-157.

O'Brien, G.V. & Schiro-Geist, C. (1997). Primary, secondary and tertiary direct threat: Issues in employment of persons with HIV/AIDS. Rehabilitation Education,11, 101-110.

Pryor, J.B., Reeder, G.D.,& McManus, J.A. (1991). Fear and loathing in the workplace: Reactions to AIDS-infected co-workers. Personality and Social Psychology Bulletin, 17, 133-139.

Smart, J.F., & Smart, D.W. (1997). Culturally sensitive informed choice in rehabilitation counseling. Journal of Applied Rehabilitation Counseling, 28, 32-37.

Summers, R.J. (1990). Determinants of the acceptance of co-workers with AIDS. The Journal of Social Psychology, 131, 577-578.