Topic: Personnel Records-HIV

Author: Robert S. Mangiaratti

To the Town Manager:

Background

I understand that an employee has disclosed to you that he/she is infected with Human Immunodeficiency Virus (HIV). The employee intends to continue working for the town. You believe that the individual will be able to perform the essential functions of the job. The employee has asked you to disclose his/her condition to co-workers.

Issues:

Are provisions of state and federal law regarding employment discrimination against disabled persons applicable to a town employee who has HIV?
If the employee voluntarily provides medical information to the town, what confidentiality requirements are applicable?

Discussion:

Job Discrimination Statutes Apply to Employees with HIV.

The federal Americans with Disabilities Act (ADA), 42 USCA 12101 et seq applies to employers with 15 or more employees. The general purpose of the ADA is to prohibit employers from excluding persons with disabilities from employment opportunities unless the person is actually unable to perform essential functions of a job. The ADA also requires employers to make reasonable accommodations to the known impairments of disabled qualified employees. Employers do not, however, have to make accommodations to disabled employees that would impose an “undue hardship” on the employer. The United States Supreme Court has held that the HIV infection is a “disability” under ADA. Bragdon v. Abbott 118 S. Ct. 2196 (1998).

State law also prohibits employment discrimination on the basis of a handicap. M.G.L. c. 151B, § 4 (16). An employer may not discriminate against a handicapped person capable of performing the essential functions a job with reasonable accommodation. The Massachusetts Commission Against Discrimination (MCAD) has issued guidelines stating that chapter 151B protections are applicable to employees infected with HIV.

The issue of what constitutes a “reasonable accommodation” under both state and federal law must be decided on a case by case basis. For the purposes of this memo, I mention the following general statement from the MCAD Guideline on Employment Discrimination on the Basis of Handicap.

Generally, reasonable accommodation for a current employee is a modification or adjustment to the work environment, enabling a qualified handicapped person to perform the essential functions of that position or enabling the handicapped employees to enjoy the same privileges and benefits of employment as are enjoyed by non-handicapped employees

In evaluating the continued employment of an employee with any contagious illness, the town may consider whether the individual poses a reasonable probability of substantial harm to any person. But employment may not be terminated because of bias or unwarranted fears about HIV.

Medical Information Must Kept Confidential

Both federal and state law limit inquiries that an employer may make about the state of an employee’s health. The details of such limitaions are outside the scope of this memo. However, I understand that the Pleasantville employee with HIV has provided certain medical information voluntarily to the town. ADA requires that information regarding an employee’s medical condition or history must be maintained on separate forms in separate medical files which should be treated a confidential medical files. The information may not be disclosed except that: 1) supervisors may be informed regarding necessary work restrictions and reasonable accommodations; 2) first aid and safety personnel may be informed when appropriate for emergency treatment; and 3) government officials investigating compliance with ADA may receive relevant information on request. 42 USCA §12112. I understand that the employee in Pleasantville wishes to inform co-workers of his/her condition. Such disclosure should be from the employee and not the town. You may assist the employee by allowing him or her to speak to co-workers. If the employee wishes to distribute a written memo to co-workers, I suggest that you first obtain written statement signed by the employee requesting that certain written information be distributed to co-workers.