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December 2016 Texas Medicaid Provider Procedures Manual

Appendix C: HIV/AIDS : C.2 Model Workplace Guidelines for Businesses, State Agencies, and State Contractors : C.2.5 Development of Workplace Policy Content

C.2.5
Individuals infected with HIV have the same rights and opportunities as other individuals. While some employers prefer a policy specific to HIV/AIDS and its unique issues, others prefer a general policy concerning illnesses and disabilities. A general policy should address HIV/AIDS in the same way as other major illnesses. Use of the following statements in agency policy is encouraged:
Use of a person’s HIV status to decide employment status, service delivery, or to deny services to HIV-infected individuals is not acceptable. Employees who believe that they have been discriminated against because of HIV or AIDS should contact the personnel office to discuss the matter, or initiate action through the agency’s grievance procedure. Other legal options may also be available.
This policy is consistent with current information from public health authorities, such as the CDC of the U.S. Public Health Service, and with state and federal laws and regulations.
While the approach and resolution of each employee’s situation may vary, similar issues may arise. A workplace policy should address the following issues about HIV/AIDS and other life-threatening illnesses or disabilities:
Discrimination. The Americans with Disabilities Act of 1990 prohibits discrimination against people with disabilities, which includes HIV and AIDS, in employment, public accommodations, public transportation, and other situations.
A specific policy statement that no one will be denied employment or employment opportunities because of a disability, satisfies the employer and employee’s need to address discrimination. Such a statement might be, “This agency complies with the Americans with Disabilities Act protections of all people with disabilities against discrimination in job application procedures, hiring, promotions, discharge, compensation, job training, and other terms or conditions of employment.” Managers may want to define ways in which they will deal with discriminatory actions.
Desire and Ability to Work. A workplace policy should address the infected employee’s desire and need to work and the infected employee’s value to the workplace. Such a statement reassures employees that the employer supports them.
The health status of someone with HIV may vary from healthy to critically ill. In the work setting, the ultimate concern is whether or not the employee can satisfy job expectations. A policy statement may say, for example, “Procedures may be adapted to provide reasonable accommodation so that people with disabilities may remain employed and productive for as long as possible. All employees, however, are expected to perform the essential functions of their job with or without reasonable accommodation.”
Performance Standards. The Americans with Disabilities Act provides protections for disabled persons qualified to perform their jobs. And although an employer may be expected to provide reasonable accommodation to a disabled employee or applicant; employers may terminate employees and refuse to hire individuals who cannot perform the essential functions of the job, with or without the reasonable accommodation.
One suggested statement is, “While the Americans with Disabilities Act does protect disabled employees from employment discrimination, all employees, those with and without disabilities, have the same performance and conduct standards regarding hiring, promotion, transfer, and dismissal.”
Reasonable Accommodation. The Americans with Disabilities Act requires employers to provide reasonable accommodations for employees with disabilities. Employers do not have an obligation to provide any accommodation that imposes an undue hardship on the employer. Specific questions about the issue of reasonable accommodation and undue hardship should be directed to staff responsible for coordinating the requirements of the Americans with Disabilities Act.
Such a policy statement might read, “The following options may be considered for people with HIV/AIDS: possible assignment or reassignment of job duties, working at home, leaves of absence, and flexible work schedules.”
Confidentiality and Privacy. Organizations that receive funds from a state agency for residential or direct client services or programs shall develop and use confidentiality guidelines to protect their clients’ HIV/AIDS-related medical information (HSC §85.115, “Confidentiality Guidelines”). Organizations that fail to adopt and use confidentiality guidelines are ineligible to receive state funds.
Employees are not required to reveal their HIV status to employers. All medical information that an HIV-infected employee provides to medical or management personnel is confidential and private. Employers may not reveal this information without the employee’s knowledge and written consent, except as provided by law (HSC §81.103, “Confidentiality; Criminal Penalty”).
A suggested policy statement might be, “This agency will protect the confidentiality of employee medical records and information. Written consent of the employee must be obtained to share any confidential information with other staff. Those with access to confidential information must maintain strict confidentiality and privacy, separating this information from employees’ personnel records. Individuals who fail to protect these employee rights commit a serious offense, which may be cause for litigation resulting in both civil and criminal penalties, and may result in dismissal.”
Coworker Concerns. Employers need to be aware of the concerns that coworkers may have about an HIV-infected coworker. A policy statement that acknowledges employee concerns and offers HIV/AIDS education helps to increase awareness and decrease fear. Equally important is a policy statement that clarifies the limits of an employer’s response to coworker concerns, e.g., “Employees do not have the right to refuse to work with someone who has any disability.”
Employee Education. Any health-care facility licensed by DSHS or DADS must require its employees to complete an educational course about HIV infection (HSC §85.010). A suggested policy statement may be: “All employees will receive education about methods of transmission and prevention of HIV infection and related conditions.” In response to HSC, §85.004, “Educational Programs,” DSHS developed model education program guidelines. These are available from DSHS, HIV/STD Comprehensive Services Branch, 1100 W. 49th St., Austin, TX. 78756‑3199, 1‑512‑533‑3000. Employers may also find the CDC’s educational kit, Business Responds to AIDS, useful in developing educational courses. HIV/AIDS education should address employee concerns about HIV communicability to themselves, their families, and coworkers. Experience shows that educated coworkers usually respond to persons with HIV/AIDS with support, rather than with fear and ostracism due to misconceptions.
Education programs must stress that agency employees who provide direct client services may face occupational exposure to a client’s blood, semen, vaginal secretions, or other body fluids that are considered to be high-risk for transmission of blood born pathogens, including HIV/AIDS. All individuals receiving direct services are clients and include individuals who are physically or mentally impaired and individuals confined to correctional or residential facilities. All state agencies should have, as part of their employee education program, comprehensive policies and protocols based on universal precautions, body substance isolation, and barrier methods. These precautions prevent the spread of infection in clinical settings. The employer’s careful planning will reflect a commitment to the health and well-being of the work force and the community being served.
Assistance. Some employers have designated benefits programs available to employees and family members with HIV infection. Such programs may:
Employers who have no employee assistance program may consider working with other organizations that provide assistance. Some of these groups include local health departments, AIDS services organizations, American Red Cross chapters, community support groups, clinical treatment and counseling services, and the religious community.
A suggested policy statement might be: “An employee who wants assistance concerning a disability or a life-threatening illness should contact the Personnel Office. This agency offers the following resources to help employees and managers deal with these issues: education and information concerning HIV/AIDS; confidential referral to supportive services for employees and dependents affected by life-threatening illnesses; and benefits consultation to help employees effectively manage health, leave, and other benefits.”

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