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LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 27887
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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As an Employer I recently found out one of the employee is

Customer Question

As an Employer I recently found out one of the employee is HIV positive. We are a horticultural small business of under 10 people. At this point he has been absent from work for over 3 weeks due to daily high fever. The employee's job description is orchid horticulturist. His job is outdoors most of the time. I read about the ADA and that the California law prohibiting termination employment.
As a employer who is aware of the recent HIV positive status, what do I need to do? I am not sure if he is fit to work in our enviornment, not sure if we can accomodate...
I don't want to put anyone in danger and the company from lawsuits.
Please advise
Submitted: 1 year ago.
Category: California Employment Law
Expert:  LawTalk replied 1 year ago.
Good morning,

I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today.

Under federal and CA law, HIV is a Disability under the ADA, and as an employer you are legally obligated to accommodate your employee to the extent reasonable. The disease would not prevent the employee from being employed in the position you have them.

However, no employer is obligated to allow an employer unlimited days off as a result of a disability---that is not a reasonable accommodation.

While your business, with less than 15 employees does not come under the EEOC discrimination regulations, it does fall under the CA DFEH (Department of Fair Employment and Housing) regulations because you have 5 or more employees---and so outright discrimination is illegal.

And, as your company has less than 50 employees you are not obligated to grant leave under the FMLA or the CA FRA.

So, at this point,. your obligation to the employee is to do as much for them---in terms of allowing a leave of absence due to ongoing disability, as you would for any other employee who was sick or disabled, and based on your ability to provide a reasonable accommodation under the ADA.

This is a fine line here---because despite the fact that you may have the right to terminate this employee based on them not working---you risk a discrimination complaint with the FEFH which you would have to defend, and show the state that you did not terminate the employee primarily because of their disability, but because of their multiple absences from the job, and the severe impact the absence has on the continued operation of your business.

While occasional absences are considered a reasonable accommodation in a situation like yours, long term absences are not absolutely mandated under the law. The ADA requires employers to reasonably accommodate employees with disabilities. And where appropriate, a reasonable accommodation can include a finite unpaid leave of absence for a reasonable period of time that does not pose an undue hardship on the employer.

The critical issue her is going to be the sort of hardship that this employee's absence poses. If the absence is not a severe hardship on your business where you really need to immediately hire a replacement---and your company has no policy one way or the other as to what sort of leave of absence will be allowed for illness or injury before the company will terminate the employee---then you need to be very careful about terminating this employee at this point in time.

Presuming that you do not have a policy, you will want to develop one and put it into place. You won't be able to use it retroactively against this employee though. However, it will set the standard for future actions by your company and will seek to protect you from arbitrary complaints of discrimination to the DFEH.

You may reply back to me using the Continue the Conversation or Reply to Expert link if you need any clarification of my answer.


Please remember to rate my service to you when our communication is completed, so that I will be compensated for my time in providing you with the information you requested. I will be happy to continue further, and to assist you until I am able to address your concerns, to your satisfaction.

I wish you the best in 2013,

Doug
LawTalk, Attorney
Satisfied Customers: 27887
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
LawTalk and 4 other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

Hi Doug,


 


Thank you for the reply. I have one additional concern...


 


Does the company have an obligation to notify other employees that there is an HIV positive person at the workplace? In case this employee vomits blood or injures himself and there are bloody fluids, it can subject others from catching the disease...and because the company is now aware he is positive, is the company responsible to notify others, as in right to know??


 


Thank you


 

Expert:  LawTalk replied 1 year ago.
Good afternoon,

Under the law, you do not have the right to disclose the fact that the employee has HIV to anyone---including your other employees.

As an employer, you are obligated to keep that information confidential and except for limited circumstances, you may not share it with others. The very limited exceptions may be learned through this article which discusses employer obligations of confidentiality:

http://www.californiacompblog.com/archives/239

Thank you for your positive rating of my service. It has been my pleasure to assist you and I hope than you will ask for me on JustAnswer should a future need ever arise.

Please feel free to bookmark the following link so you can request me to answer any future legal questions you may have:
http://www.justanswer.com/law/expert-lawtalk/

Thanks again.

Doug

When you receive your Customer Satisfaction Survey from JustAnswer, please do rate me highly (8-10) there as well. It benefits my ability to assist you and other customers, and would be tremendously appreciated.


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