The management of HIV/AIDS in the workplace is perhaps one of the most difficult situations that employers are faced with. This is due to the nature of the illness and the fact that there are so many different aspects to be considered.
Disability is one of these and the difficulty in managing disability is that it is not always easy to decide when a person is disabled.
What is disability?
It is "a physical incapacity caused by injury or disease". So, in reality, there is nothing different to managing disability or incapacity. In both instances, the employee is incapable of doing the allocated work.
The problem lies in making a decision as to when a person is disabled. I stress that if an employee is incapable of doing the job then the employer has the right to take remedial action.
Disability does not happen overnight. It is not a sudden manifestation of inability or incapacity. Once you detect or feel that the employee is not capable of doing the job then that is the time to act. It is not your responsibility to decide on the medical status of the employee. You must make your decision based on the employee's ability to work.
The first action therefore is to investigate the problem and to gather the appropriate evidence to support your conclusions. Once you have done this, you should call a meeting with the employee to discuss your concerns. Advise the employee of his or her right to have a representative present.
This is not a disciplinary hearing it is a counseling session to make sure that the employee is aware of your concerns and that you are unhappy with performance. You may discuss alternatives with the employee and try to reach agreement in terms of what you expect in the future. If you have decided to decrease the workload or to offer an alternate position you may present your case at this meeting. If the employee accepts an offer made at this meeting, this should be noted in the minutes in case of future dispute.
You should try every avenue at your disposal to facilitate, within reason, the disabled or incapacitated employee. Manage the situation and not the cause. You are not in a position to decide when an employee is disabled. You may decide that an employee is incapable of performing the allocated duties.
The code of good practice is very specific in terms of what an employer should do. The most important thing is to be fair to all. Look at alternatives. Offer reduced workload or alternate duties. The last resort is to declare the employee permanently disabled or incapable of doing any work. The employee has a right to work and is not responsible for his/her incapacity from whatever cause. To allow HIV/AIDS to cloud your judgement will be unfair to the employee.
Article courtesy of Des Squire (Managing Member) AMSI and Associates cc