Q. How should an employer deal with an employee who refuses to work around a co-worker or customer who is HIV-positive?
A. Begin by identifying the source of the employee’s fear and determining the most current scientific information available. Then decide whether the employee’s fear is reasonable or justified under the specific conditions of that worker’s job.
At this point, the employer can either recommend protective measures (if appropriate) or educate the worker about how HIV is transmitted. Education of all employees regarding the facts concerning the risk of HIV transmission may calm fears. It also can benefit the company by minimizing potential liability if it becomes necessary to discipline a worker who refuses to perform his or her job due to an unreasonable fear of contracting HIV.
Employees who refuse to perform all or part of their jobs because they fear contracting HIV may be protected from disciplinary action under OSHA regulations, the work stoppage principles of the Labor Relations Act (for unionized employers), or the “concerted activity” provision of the National Labor Relations Act (which applies to union and nonunion employers). However, to be protected under these statutes, a worker’s fear must be reasonable and must be based on ascertainable, objective evidence that a real risk exists.
The reasonableness of the employee’s belief that a risk exists can be significantly undermined if the employer has provided accurate AIDS information to its work force. On the other hand, an employer that conveys misinformation or no information to its employees about the methods by which HIV may be transmitted is less likely to successfully argue that its employees’ fears are unreasonable.
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