Positive Environment

As workers with AIDS remain on the job or return, employers scramble to react.

When Paul Hummel left his job as a part-time freight handler at Federal Express three years ago, no one expected he'd be back. Respiratory problems, diarrhea, fatigue, and other ailments related to an immune system battered by HIV had left the Minneapolis resident exhausted and depressed. The company granted him 12 weeks temporary leave, then put him on permanent leave but continued his health insurance. On his last day at work, his supervisor took him aside. She made him a promise, Hummel says. "Don't worry," she said. "You'll always have your job here."

Hummel's health rapidly disintegrated, and by January 1996, when his boss came to visit, death seemed imminent. Nobody could have predicted that three months later, after starting treatments that included a new class of drugs called protease inhibitors, Hummel would see his T-cell count rise and feel his energy return. Eager to get back to work, he would contact his boss that spring, hoping to remind her of her promise.

But his boss didn't return his phone calls, Hummel says, and when he showed up at her office door, she went white. Eventually, she told him to show up for work, he alleges, only to turn around and cancel the start date. This happened repeatedly until March of this year, Hummel says, when he received a letter informing him that his leave had expired and his position would be terminated if he didn't reapply for employment. Hadn't he been doing just that? Frantic, he called his boss -- again to no avail. Then, in August, he received a letter of termination.

"They thought I was going to die," Hummel says. "But I didn't die, and now they've fumbled the ball."

Hummel's tale illustrates the confusion and occasional panic that has gripped American businesses, as they struggle to react to HIV/AIDS as a workplace issue. Protease inhibitors, AZT, and other successful drug therapies have transformed AIDS, in many cases, from a certain death sentence into a long-term treatable illness. A decade ago, few people living with AIDS rarely remained at work. Today, according to one estimate, 90 percent of workers diagnosed with HIV keep their jobs. And employers have noticed: A 1996 Centers for Disease Control survey of 2,200 businesses found that one in six large worksites and one in 15 small worksites reported having had an employee with HIV/AIDS.

As those workers stay on the job or return to work, corporate administrators are increasingly faced with situations that require not only compassion, but policies. An HIV-positive individual on a strict drug regimen may require frequent breaks during the workday to take medications; flex-time is another accommodation often made for persons with HIV. Both may require special dispensation from company rules.

Under the American with Disabilities Act of 1990, employers are required to handle HIV-related illness like any other disability. As such, individuals with HIV/AIDS cannot be discriminated against in matters of employment. Employers must provide "reasonable" accommodation to persons who meet the legal definition of having a disability, but the individuals must be able to do the work. For example, if an HIV-positive machinist is unable to do her work without falling asleep because she's taking medications, the company may remove her from that job. She could harm herself or other employees, the company might argue. If such action is taken, however, the company is expected to make every "reasonable" accommodation for the employee, which may include finding the employee a comparable position. She may be given a desk job or transferred to another position that isn't hazardous.

Many of the accommodations requested by workers with AIDS are already available to employees in progressive workplaces. "Policies aren't different for AIDS issues because they all come under flexible work arrangements," says Sharon Klun, who manages the work/life program at American Express Financial Advisors in Minneapolis. Whether it's providing laptops so employees can work at home or new part-time work arrangements for those who want to cut back on their hours, many companies provide accommodations for workers with and without disabilities. Klun says accommodating workers with HIV has benefits for both the company and the employee. "For years, we have encouraged people [living with AIDS] to work and be as productive as possible," she says, "because we thought it was in that person's best interest as well."

But companies' legal obligations go only so far under the ADA provisions. If an accommodation poses an "undue hardship" -- if it's determined to be too costly or disruptive, or alters the nature of business operation -- an employer can obtain an exemption.

Also ADA rules don't cover every type of situation. Although Fed Ex continued Hummel's medical benefits after he left the company, the business was not obligated to do so, says Hummel's attorney, Joni Thome. The company also wasn't obligated to find work for him, she adds. "They could have said they didn't have a job," says Thome. "But they didn't." And that's key to Hummel's situation: When the company backed out of its promise to rehire Hummel, Thome says, it made a mistake. She says Hummel has since filed a complaint with the Equal Employment Opportunity Commission, alleging that Federal Express reneged on several offers of employment to him during a 10-month period, causing undue stress.

Lynn Mickelsen, legal program coordinator for the Minnesota AIDS Project, which provides clients with legal information, advice, and referrals, as well as pro bono matches with volunteer lawyers, says she's beginning to see a shift in the legal needs of Minnesotans with HIV. Concerns about estate planning and financial debt have been eclipsed by employment and disability issues, she says.

Still, HIV-positive individuals returning to work must consider the tradeoff. Pre-existing condition clauses and waiting periods for new enrollees can make switching insurance a nightmare. Roxanne White, who tested positive for HIV two years ago, currently receives Medical Assistance from the state. Getting a job, the Twin Cities resident says, would bring in more money than she currently earns as a public speaker on the topic of women and HIV, but it could also affect her ability to pay for her prescriptions while she waits for the insurance to kick in.

And White has other reservations about going back to work: Would she have to disclose her HIV status? Would she be able to handle the long hours? What about the stress?

Instead the Ojibwe native decided to launch her own business. She plans to enlist the help of other Native American women living with AIDS and start a sewing circle, designing and assembling ceremonial dance regalia. "I really want to work," White says, "so I decided to create my own job. That way, on days when I'm fatigued or having a reaction to my meds, I don't have to worry."

Other Twin Cities workers with HIV have found that supervisors and coworkers have bent over backwards to accommodate them, providing ample time for medical appointments and even arranging stop-gap insurance coverage. David, an HIV-positive Minneapolis man who asked that his real name not be used for this article, says his colleagues were more than accommodating when he became extremely sick in July 1996 while working at a large law firm. "I had cryptosporidiosis, which is usually found in bad drinking water, and for people with HIV, it's extremely deadly," David recalls. "My doctor told me I had four months to live."

David's coworkers already knew he had HIV. His boss sent him home to rest while his coworkers picked up the slack. Two office mates chipped in to buy him a massage certificate. And when cash-poor David heard about an expensive drug effective in treating cryptosporidiosis, but available only on a limited basis, another colleague handed David his credit card. "I'm convinced that's why I'm alive today," David says.

When several of David's colleagues broke away from the firm to form their own partnership, David was invited along. His future boss researched health-insurance plans and arranged a smooth transition: David received full coverage immediately. "I'm very grateful," he says. "I feel my employer has always done more than what they needed to do. It's not what you expect from corporate America."

Still, David admits, he's never had to take a long-term leave of absence from work, a circumstance that can hamstring small employers. At a previous job, he had to cover for an employee with AIDS who left and never returned to work. "I know the frustration the employer feels. You can only offer someone a position for so long before that position has to be filled."

Hummel, meanwhile, isn't sure if he'll ever get another position at Federal Express. He says he's financially strapped and emotionally spent. He recently finished a class in Website design at the Minneapolis Rehabilitation Center, but a lack of employment history over the past few years has made it difficult to find a job, he says. "I've been done wrong," he says, "and it's only getting harder."

The EEOC, which could clear the way for a court hearing or a settlement, isn't expected to begin investigating Hummel's complaint until after the first of the year.

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1 comments
jessievera10
jessievera10

Yes, in many states I think are beginning to see a shift in the legal need for citizens with HIV. I can see how there might be concerns about estate planning and financial debt. Things can get though out there and when dealing with making decisions on estate planning should be addressed and give help to those who need it.

Jessie Vera | http://www.pgbblaw.com/PracticeAreas/EstatePlanning.aspx

 
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