HIV Disclosure

KendallHR · September 2004

New to the site and love it. Have read every post concerning employees who disclose that they are HIV positive, but haven't found my specific situation. We placed a temporary employee (our own temp, not through an agency) at our front desk position with the understanding that employee would be evaluated after 90 days concerning becoming the full time incumbent. We have had some concerns along the way regarding performance (we're about half-way through the 90 day period). Last week the employee missed work but called in. Next day at work the employee disclosed to direct supervisor the HIV positive situation. Unfortunately, Supervisor did not notify me (sounds like another round of management training, yeah!) Yesterday, employee no called/no showed. Excuse was that employee couldn't talk because of meds associated with the HIV treatment and asked partner/roommate to call in, which did not happen (and violates our policy, which states you must call in and not have a proxy do it for you). Employee will be reporting to work first thing tomorrow morning and the Supervisor as well as the other managers in the office want the employee in question to be terminated. Not going to happen until I get some feedback from my colleagues here first. We are now on notice that this employee is covered under ADA, and I believe we should approach employee about needing a reasonable accommodation. Managers feel that since RA wasn't requested up front by employee that we should just terminate. Please let me know what you think!

Don D · September 2004

Kendall: This is not atypical for the types of advice we often get from non HR managers, supervisors and others. It is about the worst advice I can think of at the moment and it would lead to a million dollar lawsuit on the company.

You were already on notice of a potential/certain FMLA and ADA situation which obligates the company to apply the brakes and set certain things in motion. One of those things to set in motion is a close analysis of the attendance policy as relates to this employee. Knowing he is HIV positive and knowing he was on meds and being told he could not comply with policy due to the illness will certainly excuse him from calling in. Consider what the jury would say, the jury selected by his attorney. Your managers are offering up some very, very unsound advice. This should be a clear signal to you of what to expect from them in the future.

Absolutely nothing points to (defensible) termination in this situation.

KendallHR · September 2004

Thanks Don! Figured it would be you or Hatchetman who would answer first. When I meet with him, and we do the "interactive" part of the reasonable accommodation segment, do I need to obtain proof from his physician of his illness (some of my managers are a wee bit paranoid, thinking he may be lying). Also, if his request, or that of his physician, is intermittent leave with no notice on the days he can't work, does that trigger the Undue Hardship situation for our company? My thinking on this is that there is very little of the essential functions of the job that he can do at home, and it is very stressful for the rest of the office staff to cover the front desk when he isn't here.

Whatever · September 2004

I'm not too sure FMLA would apply (length of service, number of hours worked). However, ADA does apply. You need to talk to the ee. You should request a statement from the doctor so that you know what to expect. You are going to have to make a decision based on the law and not what other people think. Undue hardship cannot be based on the fact that their absence is stressful for the rest of the office. (ee's attorney would have a field day with that excuse)

KendallHR · September 2004

The employee is in the process of having the job description's essential functions reviewed by his physician. Perhaps I mispoke when I referenced the difficulty of not having our front office person actually in the office. Yes, its stressful, which doesn't fly with the Undue Hardship theory, but given the nature of the postion, which is being in the office to greet applicants, data enter applicant information, answer the phones, schedule appointments and interviews, and run errands as needed, I fail to see what accommodation we can make that would not lead to an undue hardship. What are your collective thoughts on this?

Don D · September 2004

It will all boil down to how often he is incapable of performing his job and what other reasonable resources you have for accommodating his incapability. If he can perform NONE of the essential functions for an INORDINATE (as defined by the company) period of time, your attorney may see the way clear to advise termination. PS: I would never terminate in this circumstance without advice of counsel from a lawyer who owned a home in the community.

jimbomt · September 2004

Not essential to the inquiry, but to satisfy my own curiosity, what is the importance of having an attorney who owns a house in the community?

Don D · September 2004

I was hoping you would ask. I mean do not accept advice from any attorney who has a small pull trailer on the back of a truck for living quarters or one who rents a room by the hour in the cheap district. For the best advice, select one you will be able to locate later.

marc · September 2004

Perhaps a look at malpractice insurance which is currently in force would be in order. Having a house in the community means they get to live with the consequences of thier advice.

This is a situation that requires one to tread lightly and thoughtfully. Advice of counsel is a must, IMO.

KendallHR · October 2004

Good thing I failed the bar exam miserably, or I would have ended up in the middle of this conversation regarding attorneys and their nefarious ways. The employee in question never got back to us with his reasonable accommodation request. To this point, we haven't heard from him at all. Hoping that means he wasn't interested in continuing to work, not that he "lawyered up" as they say on TV. Thanks for all the great advice.

Don D · October 2004

having perused your earlier posts on this thread I see that some of your managers suggested the employee might be lying about having HIV. What?!?

KendallHR · October 2004

They understood that HIV is a disability according to ADA, they questioned whether or not he actually had it or was he just making it up to use as an excuse to get coverage under the Act. I'm sure their experiences with ADA in the past have probably involved a disability that was visible to the eye. Plus, they may just be paranoid, which I don't mind in managers as long as they don't do anything about their suspisions without contacting me first. I think this also had something to do with HIPPA and them thinking that maybe we weren't allowed to get anything from a physician about his condition because of that standard.

Don D · October 2004

I was just amazed by the possibility that someone might fake being HIV positive. Don't these managers have regular duties to take care of?

HIV Disclosure

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