When an Employee Says,
Restaurants USA, March 1996

As well as acting with compassion, operators must also act in accordance with the Americans with Disabilities Act and the Family and Medical Leave Act when dealing with employees who have AIDS or who are HIV-positive.
By Paul Moomaw

The number of people who have AIDS is growing. They're living longer and working longer than ever, and that means they're more likely than ever to be employed in your restaurant or foodservice operation. The odds have also increased that people who have AIDS or the HIV infection will apply for jobs at your restaurant.

Two recent laws — the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA)— along with any applicable state laws, must be taken into account in your dealings with employees who have AIDS or who are HIV-positive.

For instance, if an employee discloses to you that he or she has AIDS, choose your response carefully. Definitely don't do what an Austin, Texas, hair salon did — unless you're ready to be sued and to write a big check. The Cost Cutters salon fired an employee when it was discovered that she was HIV-positive. The company claimed she was dismissed because of a layoff, but the Equal Employment Opportunity Commission (EEOC) filed suit on the grounds that she was unfairly discharged because of her HIV status. The business is now shelling out $13,200 as part of a settlement.

To stay out of such situations, you should comply with all laws in the first place. Despite the shortcomings of the ADA and the FMLA in terms of clarity, the laws do provide useful general guidelines for how to treat employees who have AIDS or HIV.

Second, you want to keep your workplace productive by avoiding any morale-busting incidents that might sprout from confusion about your policy toward employees with AIDS.

Third, you want to be careful about disclosing information about an employee's HIV or AIDS status because it may violate the person's right to privacy.

Fourth, and perhaps most important, you want to show support for your employees. Treat a person who has AIDS with dignity rather than pity. Not only is it compassionate, it can lessen stress on the individual, thereby helping to keep the person healthy and working.

AIDS and the ADA

The ADA prohibits employment discrimination against individuals who have a disability or who are perceived as disabled. The law is clear: AIDS (or HIV infection) is covered by the ADA. You can't discriminate in hiring, in promoting or in offering benefits to an employee with HIV/AIDS. In addition, if such an employee needs a "reasonable accommodation" to help him or her perform the essential functions of a job, you are required to provide it unless it creates an "undue hardship." There are no clear standards for what constitutes a "reasonable accommodation" or an "undue hardship." Each case is considered separately.

Employers are likely to have concerns in at least four aspects of AIDS law:

hiring and screening applicants

responding to an employee's disclosure that he or she has AIDS

determining the legality of employee-benefit plans

figuring out how to adhere to the FMLA and the ADA for an employee who needs to take leave.

At the hiring stage

A guiding principle of the employment side of the ADA is a requirement to focus on an employee's ability to perform the "essential functions" of a position. The law is designed to make employers look at what a person can do rather than cannot do. Because it is necessary to define "essential functions," the ADA gives all employers, including restaurateurs reason to devote attention to having accurate, written job descriptions for each restaurant position.

You should ask no questions about an applicant's medical condition during an interview. You can't ask a potential hire whether he or she has AIDS, and you can't require a test for the AIDS virus before extending an offer of employment. Instead, you may ask only questions that determine whether the person can perform the essential functions of a position. If an applicant volunteers that he or she has AIDS or another disability, say, "This is not something we need to talk about right now," advises Bill Scott, president of Abilities Unlimited, Inc., a disability-issues consulting firm in Phoenix.

Under the ADA, there's no requirement for you to favor persons with disabilities when hiring, but you may not discriminate against them. It is always appropriate to choose the most qualified applicant for a job. Employers should keep records of the interviewing and hiring process.

"Boss, I Have AIDS"

When an employee makes such a disclosure, you should immediately show support. An appropriate response would be, "We'll do everything possible to support you. Let us know what we can do to help." If the person is already experiencing illness or fatigue, it may be time to discuss accommodations that could be made to help the employee perform essential duties.

"How you deal with it coming out of the gate has a big effect on how things proceed," says attorney Rob Bekken, a managing partner at Fisher & Phillips in Newport Beach, California. "If you try to be kind, businesslike and fair, people usually rally around a person with AIDS."

Consider the employee's medical information confidential unless he or she chooses to disclose it. And if an employee who has AIDS does disclose his or her condition to co-workers, it might be a good idea to set up an education program about AIDS for employees to help eliminate any fears they might have. Such a program could include distributing written materials, showing a videotape about how HIV is (and is not) spread and having a guest speaker from the local chapter of the Red Cross.

What type of accommodations must be made for an employee with AIDS? Every case is different because people respond very differently to the condition and have different job requirements. A common symptom of AIDS is exhaustion. An example of a typical accommodation might be a work schedule that allowed for more frequent breaks, so the employee can rest.

An employer who has not been notified by the employee that he or she has AIDS is not liable for failure to make an accommodation. However, the employer should give workers the opportunity to discuss the disability without threat of discrimination.

It is not necessary to continue to employ someone who cannot perform the essential functions of a job-with or without reasonable accommodation. It is advisable to keep documentation of an employee's performance so that it can be determined when the employee can no longer perform those essential functions.

Insurance and benefits

Small-business owners are often concerned that employing a person who is HIV-positive will cause the operation's health premiums to skyrocket. The good news, says consultant Scott, is that premiums often do not climb substantially. Also, if the addition of a person with AIDS caused premiums to, for example, quadruple and thereby made the restaurant unprofitable, the situation would undoubtedly create an "undue hardship" for a restaurateur. In that case, the operator may not have to offer health benefits to the employee, says Scott.

Furthermore, it is legal for health insurers to exclude pre-existing conditions from an employee's coverage, as long as all plan participants are treated the same. An effective guiding principle for designing benefits plans — and most other employment policies — is to treat AIDS like any other life-threatening illness, such as cancer or heart disease. It is unwise — and illegal — to single out AIDS-related conditions in benefits packages and health plans. The EEOC recently settled a case in Pennsylvania that disallowed a health plan's provisions limiting monetary coverage of AIDS-related conditions to $10,000 while allowing $100,000 coverage for other conditions. The result of the EEOC settlement was that the employer had to pay a monetary award of more than $40,000.

Granting leave

The FMLA allows employees who have been employed with the company for 12 months to take up to 12 weeks of unpaid leave per year for a serious medical condition or to care for a seriously ill family member. The FMLA applies to employers with 50 or more employees.

Both the ADA and the FMLA allow employees to take medical leave without losing their jobs. Understanding where one law ends and the other begins in the case of an employee with AIDS is difficult. AIDS qualifies as both a "disability" (covered by ADA) and a "serious health condition" (covered by FMLA).

It is not uncommon for a person with AIDS — perhaps someone in an advanced stage of the condition — to need time off. Such an employee may request unpaid leave as a reasonable accommodation. Unless it poses an undue hardship on the restaurateur, such a request should be granted. The same employee may be eligible for up to 12 weeks of unpaid leave per year under the FMLA. Upon returning from FMLA leave, the employee must be returned to the original job or an equivalent job with equivalent pay and benefits.

However, a "key employee" — a salaried employee who is among the highest-paid 10 percent of employees — may be refused reinstatement, which allows a restaurateur to hire someone to fill the spot of that key employee (such as an executive chef).

In the case of an ill employee who is unlikely to return to service, it may be crucial to the operator's business to notify the employee that FMLA leave has begun. "It's important to trigger it so that the 12 weeks can be ticking," says Bekken, thereby allowing restaurateurs to hire someone as quickly as possible to fill a position without having to hold it open longer than the law requires. Seek expert advice.

The ADA and the FMLA are exceptionally complex — and sometimes vague — laws, and this article has presented only some highlights. If you employ a human-resources professional, that person is a likely candidate to become the staff expert on the ADA and the FMLA.

For restaurateurs who wish to be especially cautious, attorney Rob Bekken advises that the first step in dealing with an employee who has AIDS should be to immediately "call labor counsel." His advice may sound like an advertisement for lawyers, but with case law still developing on these new laws — and even EEOC attorneys sometimes unsure of their boundaries — it may be advice worth heeding.

For More Information The National Restaurant Association offers a pamphlet, Basic Facts About AIDS for Foodservice Employees, that explains how AIDS is transmitted. To order, call the Association at (800) 424-5156. A one-stop source of information regarding AIDS issues in the workplace is the National AIDS Fund. Especially timely is a new publication entitled The ADA, FMLA and AIDS: An Employer's Guide to Managing HIV-Infected Employees and other publications. To order or to become a member of the Fund, call (202) 408-4848. If your restaurant has never had a policy on AIDS, a solid starting place is the "Business Responds to AIDS Manager's Kit," available from the Centers for Disease Control and Prevention's National AIDS Clearinghouse. Call (800) 458-5231. The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcement of the employment provisions of the ADA. To reach the ADA Helpline, call (202) 663-4900. The National AIDS Hotline is a 24-hour toll-free provider of information, referrals and educational materials. Anyone can call (800) 342-AIDS for confidential information about HIV/AIDS transmission, prevention, testing and symptoms.

Back to top

---