Since the California Restaurant Association first published the report AIDS in the Workplace: Facts and Fears in 1985, the level of public education and understanding of the human immunodeficiency virus (HIV), acquired immunodeficiency syndrome (AIDS) and how HIV is contracted has changed considerably.

Unfortunately, the number of individuals infected with HIV has increased, as well. According to the Centers for Disease Control (CDC), new HIV infections are on the rise. HIV/AIDS continues to be a leading cause of death among all Americans ages 25 to 44. More than 50 percent of the workforce is in this age group. It is estimated that there are currently 1.2 Million Americans infected with HIV/AIDS, and, therefore, it is very likely that this disease has touched many lives in California’s foodservice industry.

While there is still no cure or vaccine for HIV—the virus that causes AIDS—the available medical treatment for people infected with HIV or living with AIDS has improved dramatically. Most people in the United States infected with HIV are living much longer and healthier lives. Moreover, the general public has also become more accepting and tolerant of people infected with HIV and/or individuals suffering from AIDS. The fear of AIDS that once swept this nation has been replaced by education and understanding.

This Industry Insight facilitates the learning process for employers regarding HIV and AIDS. It will generally address how HIV is contracted and how to deal with HIV/AIDS in the workplace. This knowledge will help restaurant employers establish working environments that treat individuals suffering from HIV/AIDS with compassion, while allaying the fears of their co-workers and the public.

WHAT IS AIDS?

Once a person contracts HIV, he or she may develop AIDS. A person who is HIV-positive, however, does not necessarily have AIDS. When a person has HIV, his or her immune system can become weakened to a point where it cannot defend against infections or diseases at the same level that a normal immune system could. These weakened immune systems are prime targets for opportunistic infections to attack. Some of these infections include tuberculosis, herpes, and hepatitis C. Many medical treatments available today help slow down or halt the rate at which HIV weakens the immune system. Other treatments prevent or treat some of these opportunistic illnesses that are commonly associated with AIDS. As with other serious diseases, early detection offers more options for treatment and preventative care.

HOW IS HIV CONTRACTED?

HIV is not easy to contract. A person cannot get it from touching, sharing a soda, shaking hands, hugging or social kissing. HIV is also not transmitted though the air, thus eliminating sneezing, coughing and breathing as causes of the transmittal of the disease. HIV is not contracted through sharing bed linens, towels, cups, straws, dishes or other eating utensils. It can also not be contracted by touching toilets, doorknobs, telephones, office machinery or furniture after an individual with HIV/AIDS has touched it.

HIV must get into a person’s body to infect him or her. Bodily fluids that have been proven to spread HIV are blood, semen, vaginal fluid, breast milk and other fluids containing blood. The most common way of spreading HIV infection is through unprotected sexual contact (vaginal, oral or anal). HIV can be transmitted any time there is an exchange of semen, vaginal fluid or blood during sexual activities. Practicing safer sex can help protect a person from HIV and other sexual transmitted diseases.

The second most common way HIV is spread is through blood-to-blood contact. For example, sharing contaminated needles can spread HIV. A pregnant woman can also pass the virus to her baby during pregnancy or birth. A baby can be infected in the uterus because the baby and woman share a common blood supply. In addition, babies can become infected with HIV during the birth process through exposure to the mother’s blood. A mother can also pass HIV to her baby through her breast milk. Because of this risk, the U.S. Public Health Service recommends that mothers with HIV not breastfeed their babies. The CDC states that “there is no known risk of HIV transmission to co-workers, clients or consumers from contact in industries such as foodservice establishments.”

CDC guidelines regarding AIDS in the workplace state that “foodservice workers known to be infected with HIV need not be restricted from work unless they have other infections or illnesses, such as diarrhea or hepatitis A, for which any foodservice worker, regardless of HIV infection status, should be restricted.

HIV Detection and Treatment

The only way to determine whether or not a person is HIV-positive is for the person to be tested. A person cannot rely on symptoms to determine whether he or she is infected with HIV. Many people who are infected with HIV don’t have any symptoms at all for many years and, therefore, the association cautions employers to avoid playing the role of physician.

The development and availability of potent viral-management drugs in the mid-1990s ushered in a new era of medical treatment for HIV and AIDS. New medications include antiretrovirals, protease inhibitors and reverse transcriptase inhibitors. Drug companies have combined these medications to create highly active antiretroviral therapy (HAART). The use of HAART has greatly reduced the number of deaths among individuals with HIV/AIDS. However, it is not a cure. Even though HAART has improved the treatment for patients with AIDS/HIV, it also causes significant side effects for patients taking the medicine. Common side effects include atrophy, heart failure, peripheral nerve damage, inflammation of the pancreas, swollen and fatty liver, fatigue, depression and low blood count. Employees who are undergoing HAART may require time off to deal with the side effects that this drug therapy causes.

The Law & HIV Infected Employees

The U.S. Supreme Court ruled over a decade ago that persons infected with the HIV virus causing AIDS, even those who are asymptomatic, are protected under the Americans With Disabilities Act (ADA) from discrimination at work, in medical care, housing, and their use of public services. Both California’s Fair Employment and Housing Act (FEHA) and Title I of the ADA provide employees with protection from harassment and discrimination because of a physical disability, which includes AIDS and all stages of HIV infection. The ADA is applicable to all private employers of 15 or more employees. FEHA applies to all California employers with five or more employees. These laws state:

• Employees cannot be terminated because of a medical condition. However, employees with HIV or AIDS can still be terminated for other reasons (e.g., misconduct).
• Employees may not be denied work because of a medical condition. Employers cannot deny employees a job or promotion simply because the employee has HIV or AIDS. Additionally, an employer cannot refuse to hire an individual infected with HIV/AIDS based on concerns that the employee will drive up insurance costs or get sick in the future. However, employers may refuse to hire someone with HIV or AIDS if he or she is very sick and cannot perform the required duties of the job.
• Employees must be “reasonably accommodated.” Reasonable accommodation means that employers must help those with disabilities do their jobs the best they can. This includes flexible work schedules and leave for medical care or to accommodate symptoms. Similar to other disabilities, the reasonable accommodations for an employee with HIV/AIDS cannot be unduly burdensome to the employer.
• An employee requesting “reasonable accommodation” because of a disability need not divulge the nature or type of the disability. All the employee needs is a note from his or her treating physician that states that he or she is being treated for a disability that requires periodic appointments.  Moreover, in 2008, Congress amended the ADA to make it easier for an individual with HIV/AIDS to demonstrate they are “disabled” within the meaning of the ADA. A showing that the unmedicated HIV/AIDS substantially limits immune system functioning is sufficient.
• Employees may not be subjected to a pre-employment HIV test. Requiring such a test is likely a violation of the right of privacy and other California laws.  Moreover, a blood test cannot be used in any instance to determine insurability or suitability for employment.

Finally, an individual with HIV/AIDS has a common law right to privacy under California’s Confidentiality of Medical Information Act and Article 1, Section 1 of the California Constitution. Thus, an employee’s files are protected from disclosure to unauthorized third parties unless there is written authorization from that employee. Employment litigation related to medical conditions of employees has long been a highly litigated subject. Because many of the health-related employment lawsuits concern HIV/AIDS, policies that assist an employer in the management and needs of employees with HIV/AIDS should be put in place.

As an employer, you should follow some general guidelines concerning HIV/AIDS. It is important for an employer to keep in mind that the ADA and FEHA provide protections for employees with HIV/AIDS. For example, if an employer has an employee with a medical condition under ADA or FEHA, such as HIV/AIDS, that employer is required to engage in the interactive process (this means talking with your employee) to reasonable accommodate the employee’s work environment to accommodate their disability. The employee may continue to work as long as they are able and medical evidence demonstrates they are of no danger to themselves or to others. Moreover, company policy should state than an employee with AIDS or an HIV positive diagnoses will be treated the same as any other employee with a life-threatening ailment. Ensure that your human resources department knows where to find educational materials to provide to employees concerning HIV/AIDS. More information on AIDS policies is available through www.aids.gov.

Dealing with Insurance Matters

If an employer’s company offers group health insurance, the employer must provide all employees with a Summary Plan Description of available insurance benefits. Employers should be aware that the insurance company or health maintenance organization they are contracted with cannot ask a new employee about HIV on their application.

Under California’s insurance laws, insurers of smaller employers (i.e., between two and 50 employees) can ask health-related questions, however, they cannot use the answers to discriminate or deny coverage for an employer who has employees with HIV or AIDS and should keep in mind federal and state privacy laws.

The insurer also cannot raise the rate of insurance for the employer more than 10 percent above the average amount of insurance in the county where the employer’s business is located. If a policy has a pre-existing condition wait period, then the employee must wait until after the period has expired to have any medical problems covered under the plan.

Under the Health Insurance Portability and Accountability Act of 1996 (HIPPA), an employee can only be excluded from insurance coverage for a maximum of 12 months for a pre-existing condition after the enrollment date; California law, however, allows no more than a six-month exclusion period after the enrollment date. HIPPA defines the enrollment date as the first date of coverage or, if there is a waiting period, the first day of the waiting period (typically the date employment begins).  Moreover, a plan must reduce the duration of its existing condition limit by one month for each month of previous creditable coverage, provided that any gap between insurance coverage does not exceed 63 days
 

GRANTING TIME OFF

While strides have been made in the treatment of HIV and AIDS, infected employees may still need time off to get over an illness or to adjust to a drug regimen. If a company provides medical or disability leave, an employee may use that time to recover from his or her symptoms. A medical or disability leave covers an employee for short periods of time.

An employer may be required by FEHA or the ADA to offer leave as a reasonable accommodation. Also, the Family Medical Leave Act (FMLA) and California Family Rights Act (CFRA) provides time off for employees who work for companies with more than 50 employees within a 75-mile radius and who have worked at least 1,250 hours in the past year. Qualifying employees may take as much as 12 weeks off each year either incrementally or all at once. To take time off under FMLA/CFRA, employees must:

• give the reason for time off (e.g., personal medical reasons or to care for a seriously ill immediate family member—spouse, parent or child);
• do their best to give at least a 30-day notice that they will be taking the leave; and
• try to take the leave when it will affect the company the least.

Also, employers should request written documentation from a health care provider for certification and proper designation of the medical leave. When the employee returns to work, the employer must offer the employee his or her old job or a similar one unless the company was planning to get rid of the position, regardless of whether the employee had or had not taken leave. If the position has been eliminated, then the employer should try to place the employee in a comparable position if one is available. During medical leave, employers are still required to pay the same share of the employee’s health insurance as when he or she was working. Treating HIV/AIDS no differently from any other workplace disability will help employers avoid needless claims.

Dealing with an HIV Patient’s Co-Workers

Employers cannot let such fears about HIV dominate their workplace. Allowing rumors and fear about HIV/AIDS to affect the workplace can be detrimental for the employer. Specifically, the employer could face charges of discrimination or harassment, workers’ compensation insurance stress claims and violation of privacy, all of which may be painful and expensive.

Employers should provide all managers and employees with accurate, up-to-date information about HIV and AIDS. This information should describe how HIV is and is not transmitted, who is at risk of contracting it, and how it relates to the workplace. It is often surprising for many to learn that due to a compromised immune system, a person that is HIV-positive is at far greater risk of catching an illness from a co-worker than the other way around.

The HIV/AIDS education process should also be part of an overall commitment to achieve the highest standards for food preparation. Indeed, HIV/AIDS patients are far more susceptible to foodborne illnesses such as salmonella and Vibrio viruses than healthy people are. With the number of people infected with HIV/AIDS rising, it is likely that a percentage of restaurants’ guests will be infected with HIV/AIDS.

Like the very young, the elderly and the infirm, these patrons deserve safely prepared food from each restaurant, and it is the restaurant’s employees’ job to provide it. Another way managers/restaurants can effectively deal with HIV/AIDS in the workplace is to develop an HIV/AIDS policy. The CDC has published a Manager’s Kit which provides a step-by-step analysis of how to deal with HIV/AIDS in the workplace.

Within this kit, the CDC suggests that each employer should establish a workplace policy regarding HIV/AIDS that discusses:

• employer’s position with regards to HIV/AIDS and discrimination;
• recognition of HIV-infected employees’ desire to continue to work;
• reasonable accommodations;
• acceptable performance standards;
• confidentiality and privacy;
• concerns of co-workers; and
• to whom to go for assistance.
•  

By implementing a workplace HIV/AIDS policy, employers may reduce confusion and increase acceptance in the workplace for employees with HIV/AIDS. The entire Centers for Disease Control Manager’s Kit can be downloaded at www.hivatwork.org/program/training. It is important for employers to remind their employees that HIV/AIDS does not discriminate. It can infect persons of any race, age, gender or sexual orientation. Further resources can be found at www.cdc.gov/hiv/workplace/resources.html.

Dealing with the Public

Although the public has developed a better understanding of HIV/AIDS in recent years, many people are still frightened when they learn they have come into contact with someone who is HIV-positive or suffering from AIDS. Negative reactions from customers to news or even the suspicion that a restaurant employee has HIV/AIDS, however, do not give grounds for an employer to reassign or fire that employee. Doing so would expose the employer to charges of discrimination. Employees who perform their jobs adequately must be allowed to continue to do so. An employer who displays a business-as-usual attitude will assist in keeping the work environment running smoothly. If questioned about an employee, employers must respect the privacy of the worker and stick to the facts.

Employers should emphasize that HIV/AIDS is not a restaurant issue, and that HIV/AIDS is not transmitted by food handling. Employers should not attempt to speculate about the person’s health or medical information, and should not allow employees to do so either. An employer should designate one informed person to address each employee’s questions, so that employees are not provided with false information.

Other Communicable Diseases

The CDC estimates that “each year 48 million people get sick, 128,000 are hospitalized, and 3,000 die of foodborne diseases” in the United States. Foodborne disease outbreaks contribute to this burden and are important public health concerns. Thus, under federal law, an employer can refuse to assign food-handling duties to employees who have a communicable or infectious disease that can be transmitted to others through the handling of food, if the risk cannot be eliminated by reasonable accommodation. Again, it is important to note that the CDC has no evidence that HIV is transmissible through food. Therefore, a food employee who has tested positive for HIV is of no concern unless he or she is suffering from another communicable disease.
 
The California State Department of Public Health and the CDC publish their determinations of what constitutes “infectious and communicable diseases” periodically on an annual and semi-annual basis. These lists include communicable diseases such as Cholera, E. coli, Hepatitis, Rabies, Salmonellosis, Typhoid Fever, etc.  Complete lists of communicable diseases may be found at https://www.cdc.gov/foodsafety/diseases/index.html and https://www.cdph.ca.gov/HealthInfo/discond/Pages/FoodBorneDiseases.aspx.
                                                         
When hiring an employee, an employer is prohibited by Title I of the ADA from conducting medical examinations and inquiries about the existence, nature, or severity of a disability before a conditional offer of employment is extended. In order for the manager of a foodservice establishment to not violate this aspect of the ADA, a conditional job offer must be made before he or she can make inquiries about the applicant’s health status. Furthermore, an applicant to whom an employment offer is conditionally made must be accommodated to the extent provided under the ADA. That is, if there is an accommodation that will not pose an undue hardship to the establishment and that will prevent the transmission of the disease(s) of concern through food, such accommodation must be made.

Job applicants and currently employed food workers are required to report information about their health as it relates to diseases that are transmissible through food if:

1. They have been diagnosed with an illness, have had within the past three months, or lives, with knowledge, in the same household as a person diagnosed with Salmonella Typhi, Shigella spp., Shiga-toxin-producing E. coli, or Hepatitis A or who works in a setting where there is such a confirmed disease outbreak;
2. Have at least one symptom caused by illness, infection, or other source associated with an acute gastrointestinal illness such as diarrhea, fever, vomiting, jaundice, or sore throat with fever; or
3. Have a lesion containing pus, such as a boil or infected wound, located on the hands, wrists, or exposed portions of the arms that is open or draining.

After a food employee reports information about their health to their manager, they might be restricted from working with food or excluded from working within the establishment except for those areas open to the general public. To restrict a food employee means to limit their activities so there is no risk of transmitting a disease that is transmissible through food. Therefore, the individual cannot work with exposed food, clean equipment, utensils, linens, and unwrapped single-service or single-use articles.

This report was reviewed and updated in 2018 by the Zaller Law Group, PC.  Zaller Law Group, PC provides this information for general informational purposes only. The information is not, and should not be relied upon or regarded as, legal advice. No one should act or refrain from acting on the basis of such content or information, without first consulting with and engaging a qualified, licensed attorney, authorized to practice law in such person’s particular jurisdiction, concerning the particular facts and circumstances of the matter at issue.