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EMPLOYERS MAY FACE SUITS OVER ACCOMMODATION

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Employers may face a growing challenge to incorporate AIDS sufferers into their workforces as new drug treatment options prolong victims' lives and leave them well enough to return to work.

It is an issue employers can expect to deal with for years to come, because even as these new drug treatments offer fresh hope, the virus continues to spread, particularly among young people who soon will enter the workforce.

The Americans with Disabilities Act calls for employers to make reasonable accommodations to people suffering from all long-term disabilities, including AIDS. To a large extent, companies' treatment of AIDS sufferers will be no different from the treatment of any other disability, consultants say.

But complicating the situation of accommodating AIDS sufferers in particular is the fear and misunderstanding that the disease still can generate among co-workers.

Employers that mishandle these workplace situations could find themselves faced with lawsuits charging discrimination under the ADA.

"Employers are increasingly faced with the complicated issue surrounding AIDS and HIV in the workplace. Many are not prepared," said Brian Humphrey, vp and managing executive at Sedgwick Noble Lowndes in St. Louis.

Last year, AIDS experts at the 11th International Conference on AIDS in Vancouver, B.C., presented a new approach to fighting HIV that appears to suppress virus activity in all stages of HIV infection (BI, Aug. 26, 1996).

The treatment involves a so-called "cocktail" of drugs, combining one or more anti-viral medications already commonly used, such as AZT, with newer protease inhibitor drugs the Food and Drug Administration has approved.

The protease inhibitors slow down the reproduction of the virus in the body.

Researchers say by using the anti-viral drugs and protease inhibitors together, the HIV virus in the patient's bloodstream frequently can be reduced to amounts too small to measure.

But the "cocktail" is a long way from a one-pill cure. For one thing, not everyone responds to the drugs. For another, no one knows for sure whether the drugs will be effective over the long term.

"While we are particularly optimistic about the efficacy of the protease inhibitors and the combination therapies, the reality

is that we've got very little experience with them," said Paul Ross, worldwide manager of HIV/AIDS programs for Maynard, Mass.-based Digital Equipment Corp.

As a result, he said, "I think there's the double-edged sword of enormous hope and promise, but also the disheartening phenomena if the drugs do not continue to work, and we don't know at this point, because our history is so limited."

Furthermore, say experts, AIDS sufferers must follow a dauntingly strict regimen of taking numerous pills at very precise times.

"You've got to take the drugs on time; you've got to take the right amount of drugs. You can't take a drug holiday," said Dr. Mary Romeyn, a San Francisco AIDS physician.

"People who are coming back to work will be doing so on a very strict regimen of medication," said Mr. Ross. "You have people who will be on as many as 25 to 40 different pills and combinations a day," he said.

Companies must "be sure that the workplace in itself is a supportive place, that people will be able to take their medications without fear or anxiety," Mr. Ross said.

Furthermore, "People need to understand that these have to be taken on a very strict schedule, and if you miss a time-even a half-hour late-you're running the risk of going back to square one," he said.

In addition to managing the medication, even if an employee coping with AIDS is physically capable of returning to the job, he or she may not have the stamina to put in the same number of hours as before and probably will have to go to medical appointments during business hours, as well.

"One of the challenges that AIDS has brought to the workplace is sometimes those individuals go in and out of the workplace" and can be in one day and out the next, said Roxanne Newland, leader of disability and workers compensation consulting at Lincolnshire, Ill.-based Hewitt Associates.

As of January, there were an estimated 100,000 AIDS sufferers who have taken the new round of inhibitors, and of those, 75% have experienced an improvement in health to the point of considering returning to work, said Jeff Monford, manager of the Workplace Resource Center at the Washington-based National Aids Fund, a national non-profit organization that works primarily with the private sector.

More returnees are expected.

"I know within the AIDS community that a lot of people who had sort of given up and were preparing to die now have to deal with living, which is good news," said Lynn Franzoi, vp of human resources at Fox Inc. in Los Angeles, who said she anticipates employees with AIDS will come back to work.

AIDS sufferers returning to work "is something that I anticipate is going to happen more and more," said Raymond Wheeler, an attorney with Morrison & Foerster in Palo Alto, Calif., who represents employers on employment issues.

"Normally in the past when someone has gone off because

of an AIDS-related condition, they've gone off and they haven't been able to come back, so it's a new challenge for employers," Mr. Wheeler said.

In preparation, "Employers really ought to review interview practices to make sure those are in conformance with the ADA," said the AIDS Funds' Mr. Monford. "In other words, one shouldn't ask about an interviewee's disability, but rather his or her ability to get the job done," he said.

"People with AIDS don't have special needs apart from other groups of workers with disabilities. However, they have faced more stigma and discriminatory treatment because of lack of understanding of HIV, so the law's there to protect them and give them fair access to the workplace," said Mr. Monford.

He added that while most companies already have policies in place, "too few of them have followed through with training and education. In my view, that leaves them exposed to an unacceptable risk."

That can be a company's "Achilles heel," Mr. Monford added. Companies must "make sure the policies have a life and are going to be used."

A manager, for instance, "must be prepared to confront fear with facts in a way that is appropriate and understanding to effectively deal with coworker concern," he said.

Rick Williams, worldwide manager of Boston-based Polaroid Corp.'s AIDS awareness program, estimates that less than 10% of companies "have the right policies in place" and are providing a reasonably comprehensive education on AIDS.

"If you talk about how many companies have had somebody with HIV and have treated them reasonably well, that's really an estimate, but. . .I would say that about 50% of companies treat them in a compassionate, supportive way," he said.

One possibly thorny issue is what happens if a returnee's job has already been filled or no longer exists, either because of downsizing or technological advances.

"The ADA doesn't say that you have to hold a job open forever, so I think those are going to be things that some employers are going to respond positively to, and some aren't, but the law isn't necessarily going to be able to answer that question," said Mr. Wheeler.

"The way businesses are running in America right now, it's very volatile, and so very little has stayed the same," said Mr. Ross. "The technology changes fast, the business goals change, work groups merge. Frankly, we're also dealing with downsizing, which is part of corporate life these days, so it raises some complexities."

Under provisions of the ADA, "If they're not able to perform the essential functions of a job that's currently available to them, I don't think you have an obligation to go beyond that and give them training," said Rich Gisonny, a principal and attorney with Towers Perrin in Valhalla, N.Y.

But some employers may want to look beyond the strict letter of the law.

DEC, for instance, looks at "both a combination of our legal obligations as well as ethical and consummate employee relations," said Mr. Ross, who noted his company has had a full-time HIV/AIDS office in place to assist employees since 1988.

If a recovering AIDS victim applied for a position at Houghton Mifflin Co., "We would open our arms to them," said Margaret Doherty, senior vp of human resources for the Boston-based publisher.

Situations have to be handled on a case-by-case basis, said Polaroid's Mr. Williams.

"Every case is individual, and what you need to do is look at the individual and their situation and try to develop a plan that would enable the individual to continue to work and work productively," he said.

"I will sit down with the individual and talk with them about their situation and try to get a clear idea about what their needs are and what are some options for them," he added.

Mr. Williams said he then holds a similar conversation with the worker's supervisor, "and then what I do is bring the two together, because they're the people who really need to have this conversation."

Mr. Williams added that while Polaroid's policy is to support people with long-term serious illnesses, and it will make accommodations to the extent it can, "on the other side, the individual has to be willing to go the distance" and recognize that work needs to get done, he said.

Litigation on the issue of accommodating AIDS victims is inevitable, though, warn observers.

"I think there probably will be cases where individuals with AIDS will find employers less than receptive to bringing them back," and this will naturally lead to litigation, said Towers Perrin's Mr. Gisonny.

However, Mr. Wheeler of Morrison & Foerster said he is optimistic the issue will not create a significant amount of litigation.

"I think most employers, frankly, do a pretty good job of accommodating themselves to people who have AIDS," he said. "I think employers are much more sophisticated about it these days than they used to be, and there's a real desire to work things through."