090.021 HIV/AIDS Model Workplace Guidelines for Businesses, State Agencies, and State Contractors

1.0 Purpose

To protect employment rights and privileges of individuals infected with the human immunodeficiency virus (HIV) and acquired immunodeficiency syndrome (AIDS) through compliance with federal, state, and local laws. This policy will provide Texas employers, especially state agencies, with a uniform approach to developing policies and education programs that address HIV/AIDS in the workplace. The Texas Department of State Health Services (DSHS) encourages all employers to establish workplace policies concerning persons with HIV/AIDS. Employers can adapt this model to fit the particular needs of their organization, work force, and clients. However, the content and intent must remain consistent with this document and the Texas Health and Safety Code.
 

2.0 Authority

Governance for this policy is found in Vernon's Texas Codes Annotated, Health & Safety Code (HSC) §85.010, "Educational Course for Employees and Clients of Health Care Facilities"; §85.111, "Education of State Employees"; §85.112, "Workplace Guidelines"; and §85.113, "Workplace Guidelines for State Contractors."

The model workplace guidelines developed by the DSHS, TB/HIV/STD Section, as required by HSC §85.012, "Model Workplace Guidelines"; and adopted as HIV/STD Policy 090.021, are considered the minimum standards for the development of guidelines for state agencies. This policy also serves as the minimum standard for contractors of certain designated state agencies (see page 6) and organizations funded by those state agencies (HSC §85.113). These guidelines are also the standard for health care facilities licensed by DSHS and the Department of Aging and Disability Services as stated in HSC §85.010, "Educational Course for Employees and Clients of Health Care Facilities."
 

3.0 Who Must Use Workplace Guidelines

3.1 State agencies

State law requires that each state agency adopt and carry out workplace guidelines. The agency's workplace guidelines should incorporate, at a minimum, the DSHS model workplace guidelines in this policy.
 

3.2 State contractors

A program involving direct client contact, which contracts with or is funded by any of the state agencies listed on page 6, will adopt and carry out workplace guidelines as stated in HSC §85.113.
 

4.0 Why Have Guidelines

Employers should develop and carry out policies and education programs concerning potentially limiting medical conditions before a crisis arises. Such policies and education programs help reduce employees' fears and misconceptions about HIV/AIDS and help to:

• provide current and accurate scientific evidence that people with HIV infection do not pose a risk of transmitting the virus to co-workers through ordinary workplace contact;

• provide workers with current information about HIV risk reduction for employees and their families;

• avoid conflict between the infected employee and the employer regarding discrimination or other employment issues;

• prevent work disruption and rejection of the infected employee by co-workers;

• inform employees that they have rights regarding work continuation, confidentiality of medical and insurance records, and general health and safety;

• provide specific and ongoing education and equipment to employees in health care settings who are at risk of exposure to HIV, and to assure that appropriate infection-control procedures are used; and

• reduce the financial impact, legal implications, and other possible effects of HIV/AIDS in the workplace.
   

5.0 Development of Workplace Policy Content

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. We encourage use of the following statements in agency policy.

• 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 Centers for Disease Control and Prevention (CDC) of the United States 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.

A. Discrimination. The Americans with Disabilities Act (ADA) of 1990 prohibits discrimination against people with disabilities, which include 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 ADA 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.

B. 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.

C. Performance Standards. The ADA provides protections for disabled persons "qualified" to perform his or her job. 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 ADA 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."

D. Reasonable Accommodation. The ADA 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 ADA.

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."

E. 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."

F. Co-worker Concerns. Employers need to be aware of the concerns that co-workers may have about an HIV infected co-worker. 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 co-worker concerns, e.g., "Employees do not have the right to refuse to work with someone who has any disability."

G. Employee Education. Any health care facility licensed by the DSHS or the Department of Aging and Disability Services 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, TB/HIV/STD Section, Post Office Box 149347, MC 1873, Austin, Texas 78714, (737) 255-4300. 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 co-workers. Experience shows that educated co-workers 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 borne 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.

H. Assistance. Some employers have designated benefits programs available to employees and family members with HIV infection. Such programs may:

• make referrals for testing, counseling, medical, and psychosocial services,

• provide HIV/AIDS workplace training for managerial staff,

• serve as a liaison between management and the employer's clinical and occupational health programs, and

• provide counseling for employees who irrationally fear co-workers or clients.

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."
   

6.0 Where to Go for Help

Refer employees to the CDC HIV/STD Information line at 1 (800) CDC-INFO (English/Español) or other appropriate resource.
 

7.0 State Agencies Listed Under HSC §85.113

Health and Safety Code §85.113, "Workplace Guidelines for State Contractors" states "An entity that contracts with or is funded by … to operate a program involving direct client contact shall adopt and implement workplace guidelines similar to the guidelines adopted by the agency that funds or contracts with the entity." H.B. 2292, 78th Leg., abolished 10 of the 12 existing health and human services agencies and transferred their powers and duties to three new state agencies and to the Health and Human Services Commission; therefore rendering the state agency list found in HSC §85.113 obsolete. The list below reflects the state agency consolidation brought about by H.B. 2292 and identifies the state agencies to who HSC §85.113 applies.

• Department of Aging and Disability Services

• Department of Assistive and Rehabilitative Services

• Department of State Health Services

• Health and Human Services Commission

• Texas Department of Criminal Justice

• Texas Juvenile Justice Department
   

8.0 Revision History