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This guidance is designed to assist Federal agencies in establishing
effective programs and policies in dealing with Acquired Immune Deficiency Syndrome (AIDS)
and human immunodeficiency virus (HIV). In this guidance, the term AIDS is used to refer
either to the general AIDS phenomenon or clinically diagnosed AIDS. The term HIV is used
when discussing the range of medical conditions associated with HIV-infection or the
actual infection itself, without regard to the onset of AIDS.
Guidelines issued by the Public Health Service's Centers for Disease Control
(CDC) dealing with HIV/AIDS in the workplace state that "the kind of nonsexual
person-to-person contact that generally occurs among workers and clients or consumers in
the workplace does not pose a risk for transmission of [AIDS]." In addition, people
with HIV-infection live for many years without any symptoms and people who develop AIDS
live for a number years after their diagnosis. Therefore, employees with HIV/AIDS must be
allowed to continue working as long as they are able to maintain acceptable performance
and do not pose a safety or health threat to themselves or others in the workplace. If
performance or safety problems arise, agencies should address them by applying existing
Federal and agency personnel policies and practices.
HIV infection can eventually result in medical conditions which impair the employee's
health and ability to perform safely and effectively. In these cases, agencies should
treat employees with HIV/AIDS in the same manner as employees who suffer from any other
serious illnesses. This means, for example, that employees may be granted sick leave or
leave without pay when they are incapable of performing their duties or when they have
medical appointments. In this regard, agencies must consider accommodation of employees'
HIV/AIDS-related conditions in the same manner as they would other medical conditions
which warrant such consideration.
There is no medical basis for employees refusing to work with fellow employees or agency
clients who are HIV-infected or diagnosed with AIDS. Additionally, employees may not
engage in behavior that creates an uncomfortable or hostile environment for employees who
are HIV-infected or who have AIDS. Co-workers who engage in this type of conduct may be
subject to disciplinary action, and supervisors are accountable for ensuring that HIV/AIDS
workplace policies are understood and complied with. Nevertheless, the concerns of these
employees should be taken seriously and should be addressed with appropriate information
and counseling. In addition, employees, such as health-care personnel, who may come into
direct contact with the body fluids of persons having HIV/AIDS should be provided
appropriate information and equipment to minimize the risks of such contact.
Employees infected with HIV, or perceived as such, are employees with a
disability whose rights are protected by the Rehabilitation
Act of 1973 (29 U.S.C. 794). The Rehabilitation Act was amended in 1992 (Public Law 102-569,
Section 506, dated October 29, 1992) to conform with the Americans with Disabilities
Act of 1990 with regard to standards used to determine employment discrimination. However,
it is the Rehabilitation Act which governs Federal workplace issues, and discrimination on
the basis of such a disability is a violation of the Rehabilitation Act. Discriminatory
acts include not only actions by supervisors but may also include actions by co-workers
such as harassment or creation of a hostile work environment. Agency efforts directed at
achieving a non-discriminatory workplace should include dealings with the public and
clients, as well as employees.
Information and
Education Programs
In a directive to heads of agencies on September 30, 1993, the President
directed that all agencies develop and deliver training on HIV/AIDS prevention,
transmission and workplace policies for all employees and supervisors. Guidelines issued
by the Office of National AIDS Policy on April 7, 1994, discussed the methods of delivery
and the content of such training. The guidelines called for training to include
information on the disease, transmission, prevention, workplace policy, and resources.
That phase of the training under this initiative was completed on March 31, 1995. As a
second phase, agencies are encouraged to incorporate this training into appropriate future
employee orientation and supervisory training. Any additional training and education
should be offered on an on-going and planned basis, but may also be presented as a
response to a particular situation at the worksite (e.g., when an employee reveals that
he/she is HIV-infected or has AIDS).
HIV/AIDS
Training and Religious Accommodation
Employees who object to attending HIV/AIDS training based on a personal
religious belief or practice may request a reasonable accommodation. Title VII of the 1964
Civil Rights Act and Equal Employment Opportunity Commission (EEOC) regulations (29
CFR Section 1605.2) state that employers have an obligation to accommodate the
religious practices of an employee unless the employer can demonstrate that accommodation
would result in undue hardship on the conduct of its business. 29 CFR Section 1605.2(b)
also provides that a refusal to accommodate is justified only when an employer can
demonstrate that an undue hardship would in fact result from each available alternative
method of accommodation.
Agencies have an obligation as the result of the President's initiative to inform
employees of their responsibilities concerning laws and policies relating to HIV/AIDS in
the workplace. The mechanism for providing employees with the information presents
opportunities for reasonable accommodation based on religious belief or practice. If an
employee requests not to attend the training based on religious belief or practice, the
same written information which is distributed during the scheduled training should be
given to the employee.
Employees granted an accommodation based on a religious belief or practice should be told
that such accommodation does not relieve them of their responsibility to conform with
applicable laws and policies prohibiting discrimination against persons with HIV/AIDS.
Agencies should request that employees provide a brief written statement concerning the
personal religious belief or practice and its conflict with the agency's
requirement. The employee should request a specific reasonable accommodation.
For employees who have personal concerns about HIV/AIDS, agency employee
assistance programs (EAPs) can be an excellent source of information and counseling and
can provide referrals, as requested, to community testing and counseling services,
treatment, and other resources. EAPs can also provide counseling to employees who have
apprehensions regarding the communicability of the disease or other related concerns.
Because EAPs are in a unique position to offer information and assistance, agencies are
encouraged to establish HIV/AIDS information, counseling, and referral capabilities in
their EAPs and to make employees and supervisors aware of available services. In addition,
EAPs can be a good source of managerial/supervisory training on HIV/AIDS in the workplace.
As with other services provided by the EAP, strict adherence to applicable privacy and
confidentiality requirements must be observed when advising employees with
HIV/AIDS-related concerns. In addition to services provided by the EAP, the agency's
occupational health program, health unit, or medical staff should be prepared to assist
employees seeking information and counseling on HIV/AIDS.
Relationship
to Personnel Management Issues
When HIV/AIDS becomes a matter of concern in the workplace, a variety of personnel issues may arise. These issues should be addressed within the framework of existing procedures, guidance, statutes, case law, and regulations. Following is a brief discussion of HIV/AIDS-related issues which could arise in various personnel management areas, along with some basic guidance on how to approach and resolve such issues. Agencies are cautioned that, as with any complex personnel management matter, the resolution of a specific problem must be based on a thorough assessment of that problem and how it is affected by contemporary information and guidance about HIV/AIDS, current law and regulation bearing on the involved issue, and the agency's own policies and needs.
An employee with HIV/AIDS may develop a variety of medical conditions.
These conditions can range all the way from immunological impairment in early stages of
HIV-infection to clinically diagnosed AIDS. At some point, a concern may arise as to
whether such an employee, given his or her medical condition, can perform the duties of
the position in a safe and reliable manner. This concern will typically arise at a point
when the HIV-infected employee suffers health problems which affect his or her
performance, conduct, or ability to report for duty. Also, in some situations the concern
may stem from the results of a medical examination required by the employee's position.
It is primarily the employee's responsibility to produce medical documentation regarding
the extent to which a medical condition is affecting job performance, conduct, or
availability for duty. However, when the employee does not produce sufficient
documentation to allow agency management to make an informed decision about the extent of
the employee's capabilities, the agency may offer a medical examination, and in some cases
order (i.e., when there are medical standards for the job series or a specific position,
or when the job requires on-going medical exams) the employee to undergo a medical
examination (see 5
CFR Part 339, Subpart C). Accurate and timely medical information will allow the
agency to consider alternatives to keeping the employee in his or her position if there
are serious questions about safe and reliable performance. It will also help determine
whether the HIV-infected employee's medical condition is sufficiently disabling to
consider reasonable accommodation under the Rehabilitation Act of 1973.
Employees with HIV/AIDS may request sick or annual leave or leave without
pay to pursue medical care or to recuperate from the ill effects of their medical
condition. In these situations, the agency should make its determination on whether to
grant leave in the same manner as it would for other employees with medical conditions. In
addition, employees with HIV/AIDS may be entitled to 12 weeks of unpaid leave under the
Family and Medical Leave Act of 1993, and they may also be eligible to participate in
leave transfer or leave bank programs.
The
Family and Medical Leave Act of 1993 (FMLA), Public Law 103-3, provides
eligible employees an entitlement to a total of 12 administrative workweeks of leave
without pay (LWOP) during any 12-month period for certain family medical needs including
the care of a spouse, son, daughter, or parent with a serious health condition or for an
employee's own serious health condition. Agencies may also expand on the definition of
family member. Employees may elect to substitute accrued annual or sick leave for unpaid
FMLA leave, consistent with current law and regulations. Upon return from FMLA leave, an
employee must be returned to the same position or to an equivalent position with
equivalent pay, benefits, status and other conditions of employment. OPM issued interim
regulations on the FMLA (5
CFR Part 630, Subpart L) in the Federal Register on July 23, 1993 (58 FR
39596).
Federal Employees Family Friendly Leave Act
With the enactment of Public Law 103-388, The Federal Employees Family Friendly
Leave Act, most full time employees may use a total of up to 104 hours
(13 days) of sick leave each leave year to care for sick family members or for
purposes relating to the death of a family member. The law allows employees to use at
least 40 hours of sick leave per year for these purposes but permits a total number of up
to 104 hours as long as employees retain at least 80 hours of sick leave in their leave
accounts.
Under the Act, family member means: spouse, and parents thereof; children, including
adopted children, and spouses thereof; parents; brothers and sisters, and spouses thereof;
and any individual related by blood or affinity whose close association with the employee
is the equivalent of a family relationship. OPM issued final regulations (5 CFR Part 630,
Subparts D and E) in the Federal Register (59 FR 62266, Vol. 59, No. 231) on December 2,
1994, which was also the effective date of the provisions.
Federal
Leave Sharing Programs
On October 8, 1993, the President signed into law the Federal Employees
Leave Sharing Amendments Act of 1993 (Public Law 103-103)
which make permanent the voluntary leave transfer and leave bank programs. Leave transfer
programs allow Federal employees to donate annual leave to other Federal employees who
have personal or other family medical emergencies and who have exhausted their own leave.
Leave bank members with medical emergencies can withdraw leave from the bank if they
exhaust their own leave. Each agency has established its own methods of administering
these programs.
Changes in Work
Assignment/Location
Agencies considering changes such as job restructuring, detail,
reassignment, flexible scheduling, or alternative workplace arrangements (flexiplace) for
employees with HIV/AIDS should do so in the same manner as they would for other employees
whose medical conditions may affect the employee's ability to perform in a safe and
reliable manner. In considering changes in work assignments, agencies should observe
established policies governing qualification requirements, internal placement, and other
staffing requirements.
With flexiplace programs, agencies have the authority to permit employees to work at
locations other than the regular office. Employees on flexiplace typically work at home
but can work at other agency-approved locations, such as one of several Interagency
Telecommuting Centers in outlying areas of the Nation's Capital and in California. The
General Services Administration (GSA) is planning an expansion of satellite centers to 30
cities. Flexiplace is an ideal accommodation for employees who have temporary or
continuing health problems or who might otherwise have to retire because of disability.
There may be situations where fellow employees express reluctance or
threaten refusal to work with employees or clients with HIV/AIDS. Such reluctance is often
based on misinformation or lack of information about the transmission of HIV. According to
leading medical research, there is no known risk of transmission of HIV through normal
workplace contacts. Nevertheless, OPM recognizes that the presence of such fears, if not
addressed in an appropriate and timely manner, can be disruptive to an organization.
Usually an agency will be able to deal effectively with such situations through
information, counseling, and other means. However, in situations where such measures do
not solve the problem and where management determines that an employee's unwarranted
threat or refusal to work with an employee or client with HIV/AIDS is impeding or
disrupting the organization's work, it should consider appropriate corrective or
disciplinary action against the threatening or disruptive employee(s).
In other situations, management may be faced with an employee with HIV/AIDS who is having
performance, conduct, or attendance problems. Management should deal with these problems
through appropriate counseling, remedial, and, if necessary, disciplinary measures. In
pursuing appropriate action in these situations, management should be sensitive to the
possible contribution of anxiety over the illness to work behavior and to the requirements
of existing Federal and agency personnel policies, including any obligations the agency
may have to consider reasonable accommodation for the employee with HIV/AIDS.
In general, employees are under no obligation to reveal whether or not
they are HIV-infected or have AIDS to anyone at work. However, situations may arise where
an employee may need to reveal some medical information regarding their medical condition
to obtain a benefit such as extended leave or reasonable accommodation of a disabling
condition. Because of the nature of the disease, HIV-infected employees will have
understandable concerns over confidentiality and privacy in connection with medical
documentation and other information relating to their condition. Agencies should be aware
that any medical documentation submitted to an agency for the purposes of an employment
decision and made part of a file pertaining to that decision becomes a "record"
covered by the Privacy Act.
The Privacy Act generally forbids agencies to disclose a record which the Act covers
without the consent of the subject of the record. An exception to that disclosure
prohibition can occur when agency officials have a need to know the information for an
appropriate management purpose. Officials who have access to such information are required
to maintain the confidentiality of that information. In addition, supervisors, managers,
and others included in making and implementing personnel management decisions involving
employees with HIV/AIDS must strictly observe applicable privacy and confidentiality
requirements governing any information given by an employee in confidence, whether written
or oral. Agencies should, however, limit the type and amount of medical information made
available by a particular employee to only that needed to make a decision. For example, a
supervisor might need to know that an employee has a disabling condition that may require
accommodation and that the accommodation is medically warranted but would not necessarily
need to know the full clinical diagnosis.
Employees with HIV/AIDS can continue their coverage under the Federal Employees Health Benefits (FEHB)
Program and/or the Federal
Employees' Group Life Insurance (FEGLI) Program in the same manner as other employees.
Their continued participation in either or both of these programs would not be jeopardized
solely because of their medical condition. The health benefits plans cannot exclude
coverage for medically necessary health care services based on an individual's health
status or a pre-existing condition. Similarly, the death benefits payable under the FEGLI
Program are not cancelable solely because of the individual's current health status.
However, any employee who is in a leave-without-pay (LWOP) status for 12 continuous
months faces the statutory loss of FEHB and FEGLI coverage but has the privilege of
conversion to a private policy without having to undergo a physical examination.
Employees who lose FEHB coverage upon separation from Federal service may generally
continue their FEHB coverage for up to 18 months by paying 102 percent of the full
premium. They can then convert to a private policy without undergoing a physical.
Employees who are seeking to cancel previous declinations and/or obtain additional
levels of FEGLI coverage must prove to the satisfaction of the Office of Federal
Employees' Group Life Insurance that they are in reasonably good health. Any employee
exhibiting symptoms of any serious and life-threatening illness may be denied the request
for additional coverage.
With the passing of Public
Law 103-409, the FEGLI Living Benefits Act (enacted on October 25, 1994 and
effective on July 25, 1995), Federal employees who are diagnosed as terminally ill with a
life expectancy of nine months or less may elect to receive all or a portion of their
FEGLI (Basic only) life insurance benefit as a "living benefit." In addition, Public
Law 103-336, Section 4, enacted and effective on October 3, 1994, gives all
Federal employees and former Federal employees the right to irrevocably assign their FEGLI
coverage (Basic and Option A and Option B). Employees who are terminally ill
may choose to assign their FEGLI coverage to another person(s), trust(s), or to a viatical
settlement company which will then pay them a cash amount for these benefits. This
provides a means of obtaining financial resources for terminally ill employees other than
through the Living Benefits Act provisions. It also provides an option for terminally ill
employees/annuitants with a life expectancy longer than nine months.
Employees with HIV/AIDS may be eligible for disability retirement if their
medical condition warrants and if they have the requisite years of Federal service to
qualify. OPM considers applications for disability retirement from employees with HIV/AIDS
in the same manner as for other employees, focusing on the extent of the employee's
incapacitation and ability to perform his or her assigned duties. OPM makes every effort
to expedite any applications where the employee's illness is in an advanced stage and is
life threatening.
HIV/AIDS in the workplace may be an appropriate area for partnership and
cooperative labor-management activities, particularly with respect to providing employees
education and information and alleviating HIV/AIDS-related problems that may emerge in the
workplace. To the extent that an agency proposes HIV/AIDS-related policies or programs
which would affect the working conditions of bargaining unit employees, unions must be
accorded any rights they may have to bargain or be consulted as provided for under 5 U.S.C. Chapter 71.
In 1985, the Centers for Disease Control and Prevention (CDC) published guidelines relating to the prevention of HIV transmission in most workplace settings. Since that time several updated documents have been issued. OPM strongly encourages agencies, especially those with employees occupying health care and related positions, to establish health and safety practices consistent with the following guidance:
- The CDC published specialized guidelines in 1987 relating to health-care
workers, CDC
Recommendations for Prevention of HIV Transmission in Health-Care Settings, 36 MMWR
Supp. no. 2s (August 21, 1987). A year later an update was released as: Update: Universal
Precautions for Prevention of Transmission of Human Immunodeficiency Virus, Hepatitis B
Virus and other Bloodborne Pathogens in Health Care Settings, 37 MMWR 24 (June 24, 1988).
The 1987 version should be consulted for specific recommendations not addressed in the
1988 update.
- Guidelines
for Prevention of Transmission of Human Immunodeficiency Virus, Hepatitis B Virus to
Health-Care and Public Safety Workers. MMWR 1989:38 (no. S-6) was
published June 23, 1989. It includes the principles and application of infection control,
employer responsibilities, with special sections for fire and emergency medical services
and law-enforcement and correctional facility officers. This document was reprinted in May
1991.
-In 1989, the National Institute for Occupational Safety and Health (NIOSH) published A Curriculum Guide for Public-Safety and
Emergency-Response Workers. Prevention of Transmission of Human Immunodeficiency Virus and
Hepatitis B Virus, NIOSH Publication No. 89-108, HIV/NIOSH/2.89/002.
This is a course of study for the prevention of bloodborne pathogens (BBP) transmission.
It contains curriculum, tips for trainers, lecture outline, overheads, case studies,
resources, glossary, and copies of all the above mentioned documents.
- The Occupational Safety and Health Administration (OSHA) published their final rule for
occupational exposure to BBPs in the Federal Register, Department of Labor, 29 CFR Part
1030, December 6, 1991. Effective March 6, 1992, the rules mandate that each employer
having employees with exposure to BBPs establish a written control plan. The plan should
be designed to eliminate or minimize employee exposure. It must encompass, but is not
limited to, practices and procedures for the following elements: BBP exposure
determination, methods for compliance (universal precautions, engineering and work
practice controls, personal protective equipment, housekeeping, regulated waste, laundry),
BBP training, hepatitis B vaccinations, post-exposure evaluation and follow-up, and
communication of hazards to employees and recordkeeping. A supplementary booklet, Occupational
Exposure to Bloodborne Pathogens, OSHA 3127, 1992, offers an explanation
of the various parts of the standard and sources for assistance. This document was
reprinted in 1993.
One area of personnel management which agencies may overlook when
considering HIV/AIDS policies and practices is employee blood donations. OPM joins the
American Red Cross in urging agencies to encourage employees to consider donating blood.
Under guidelines established by the American Red Cross, there is no risk of contracting
HIV/AIDS from giving blood, and agencies should continually inform employees of this when
planning blood drives and conducting HIV/AIDS workplace training.
For further information regarding these HIV/AIDS policy guidelines, please contact the Employee Health Services Policy Center, Office of Personnel Management, 1900 E Street, N.W., Room 7412, Washington, DC 20415 (or phone (202) 606-1269, FAX (202) 606-0967), or email healthierfeds@opm.gov.