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09 - Personnel Policies Amendment to Section 2.01Item No. 9 memorandum TO: Mayor & City Council Grayson Path, City Manager FROM: Stephanie H. Harris, City Attorney SUBJECT: AMENDMENT TO SECTION 2.01, "EQUAL OPPORTUNITY EMPLOYER," TO THE CITY OF PARIS PERSONNEL POLICIES AND PROCEDURES. DATE: July 8, 2020 BACKGROUND: The city has long had an anti -discrimination policy in its personnel manual, but the policy did not specifically name HIV/AIDS as a condition for which discrimination is prohibited. HIV/AIDS would be covered by the general language of the policy, found in Section 2.01 of the manual, but again, it wasn't specifically named. STATUS OF ISSUE: One of the conditions of receiving CARES Act funding is that the city adopt an HIV/AIDS anti -discrimination policy. Sandy Collard, our human resources director, consulted the Texas Department of Health and Human Services model policy and crafted the amended policy attached to the proposed resolution. I have reviewed the proposed policy amendment and confirmed that it conforms to the recommendations in the state model policy. I have attached the proposed policy amendment and the current policy for your comparison. BUDGET: Adoption of the policy is required if the City is to receive its allotted funding under the CARES Act. RECOMMENDATION: Move to approve an amendment to Sec. 2.01 of the City of Paris Personnel Policies and Procedures to include HIV/AIDS and other expanded antidiscrimination language. SECTION 2.01— Eg ual O )ortung Em Flo fer In compliance with the state and federal laws including Title VII of the Civil Rights Act of 1964 and the American with Disabilities Act of 1991, the City is an equal opportunity employer. No person shall be discriminated against because of race, color, religion, sex, age, national origin, disability, pregnancy, HIV/AIDS, veteran status or any other characteristic protected by law in job application procedures, hiring, promotions, discharge, disciplinary measures, compensation, benefits, job training, and other terms or conditions of employment. Disqualification on the basis of physical requirements is prohibited unless such disqualification constitutes a bona fide occupational qualification or essential function necessary to proper and efficient administration of a job. Discrimination, including association or support of any religious organization, against any person based wholly or partly on the person's membership in, affiliation with, or contribution, donation, or other support provided to a religious organization is prohibited. The City is prohibited from withholding or terminating employment to persons based upon association or support of any religious organization. Procedures may be adapted to provide reasonable accommodation to the known physical (including the effects of a pregnancy or child birth) or mental impairments so that people with disabilities including HIV/AIDS may remain employed and productive for as long as possible. The following options may be considered: possible assignment or reassignment of job duties, leaves of absences, and flexible work schedules. The City's obligation under this policy is limited to providing reasonable accommodations that will not result in undue hardship to the City. All employees, however, are expected to perform the essential functions of their job with or without reasonable accommodation. While the ADA does protect disabled employees from employment discrimination, all employees, those with and without disabilities, have the same performance and conduct standards regarding hiring, promotion, transfer, and dismissal. City employees or applicants, who need reasonable accommodations due to a disability or feel they have been the subject of discrimination, should discuss these circumstances with their Department Head and/or Human Resources. The City will protect the confidentiality of employee medical records and information. Written consent of the employee must be obtained to share any confidential medical record and information with other staff. Those with access to confidential medical record and information must maintain strict confidentiality and privacy, separating this information from employee's personnel records. While the City acknowledges co-worker concerns regarding disabilities and encourages any employee with such concerns to contact Human Resources for educational resources, employees do not however have the right to refuse to work with someone who has a disability. An employee who wants assistance concerning a disability or a life-threatening illness should contact Human Resources. �. SECTION 2 — EQUAL OPPORTUNITY SECTION 2.01 Eualrvrv0 �tortunit Emlo er In compliance with the state and federal laws including Title VII of the Civil Rights Act of 1964 and the American with Disabilities Act of 1991, the City is an equal opportunity employer. No person shall be discriminated against because of race, color, religion, sex, age national origin, disability or any other characteristic protected by law. Disqualification on the basis of physical requirements is prohibited unless such disqualification constitutes a bona fide occupational qualification or essential function necessary to proper and efficient administration of a job. Employees or applicants, who need reasonable accommodations due to a disability or feel they have been the subject of discrimination, should discuss these circumstances with their Department Head and/or the Human Resources Officer. SECTION 2.02 — Ille al Harassment All city employees are entitled to a workplace free of unlawful harassment by management, supervisors, co-workers, citizens and vendors. City employees are also prohibited from discriminating against or harassing citizens, vendors, and other third parties. Harassment of any nature, when based on race, color, religion, sex, age, national origin, disability or any other characteristic protected by law will not be tolerated. SECTION 2.021— Sexual Harassment The City of Paris is committed to maintaining a work environment free from sexual harassment for all employees. Business decisions regarding employment, transfers, promotions, discipline or terminations based on an employee's submission or refusal of sexual advances will not be tolerated. SECTION 2.022 — Definition Sexual harassment is a form of gender-based discrimination prohibited by Title VII of the Civil Rights Act of 1964. Sexual harassment is, as defined by the Equal Employment Opportunity Commission, "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when submission to the conduct enters into employment decisions and/or the conduct unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment." The two most common forms of sexual harassment are "quid pro quo" and "hostile work environment." Quid pro quo harassment forces an employee to choose between the job and the demands being made by the harasser. Hostile work environment harassment occurs when there is a repeated pattern of verbally abusive, threatening, crude, impolite or various other types of unprofessional conduct that impairs an employee's ability to perform a job. Examples of behavior that may be considered sexual harassment are: e-mails or text messages that contain sexually explicit or vulgar demeaning information based on gender, telling sexual 3 The City is an equal opportunity employer. Discrimination against any person in recruitment, examination, selection, appointment, rate of pay, promotion and transfer, retention, daily working conditions, training, awards, compensation and benefits, disciplinary measures or any other aspect of employment because of age, race, color, religion, sex, national origin, disability, pregnancy, genetics, veteran's status or other unlawful basis, is prohibited. Discrimination, including association or support of any religious organization, against any person based wholly or partly on the person's membership in, affiliation with, or contribution, donation, or other support provided to a religious organization is prohibited. The City is prohibited from withholding or terminating employment to persons based upon association or support of any religious organization. The Age Discrimination in Employment Act applies to all Texas cities, regardless of their size. 0 Lynn Law, PLLC 2019 1 2019 Sample Employee Handbook S To ensure compliance with the Americans with Disabilities Act (ADA) and Americans with Disabilities Act as Amended (ADAAA), the City offers equal employment opportunity to qualified individuals and strictly prohibits discrimination against qualified individuals on the basis of disability. The City will provide reasonable accommodation to the known physical (including the effects of a pregnancy or child birth) or mental impairments of an otherwise qualified individual with a disability if such reasonable accommodation will enable the individual to perform the essential functions of the position. The City's obligation under this policy is limited to providing reasonable accommodations that will not result in undue hardship to the City.1 Any employee seeking a reasonable accommodation for a disability that affects the employee's ability to perform the essential functions of the position shall make a written application on a form provided by I insert Title or Deis en , Employees who have a complaint involving potential violations of the Americans with Disabilities Act or ADAAA, including but not limited to harassment, discrimination, or failure to provide a reasonable accommodation, must immediately contact the immediate Supervisor, Human Resources, the City Manager or designee. Section 180.004 of the Texas Local Government Code protects female law enforcement officers fTom NUM., i . �, •� �1. �-� ,i� n= _ �� l . . Y - ' B - - C Lynn Law, PLLC 2019 1 2019 Sample Employee Handbook Far1/2020 s Texas DSHS HIV/STD Program d HIV/STD Program Policy 090.021 0 TEMS heath and Ruman TeMlIeWbuNdState 0 sem"4 1 Run Services 090.021 1 HIVrfAIDS Modeld- < Contractors Policy Number 090.021 Effective Date January 27. 1990 Revision Date November 18, 2004 Subject Matter Expert Policy Manager Approval Authority TB/HIV/STD Section Director Signed by Felipe Rocha, M.5.SW. To protect employment rights and privileges of individuals infected with the human immunodeficiency virus (HIV) and acquired immunodeficiency syndrome (AIDS) through compliance with federal, state, and local laws. This polity will provide Texas employers, especially state agencies, with a uniform approach to developing policies and education programs that address HBV/AIDS in the workplace. The Texas Department of State Health Services (DSHS) encourages all employers to establish workplace policies concerning persons with HIV/AIDS. Employers can adapt this model to fit the particular needs of their organization, work force, and clients. However, the content and intent must remain consistent with this document and the Texas Health and Safety Code. 2.0 Authority Governance for this policy is found in Vernon's Texas Codes Annotated, Health & Safety Code (HSC) §85.010, "Educational Course for Employees and Clients of Health Care Facilities"; §85.111, "Education of State Employees"; §85.112, "Workplace Guidelines"; and §85.113, "Workplace Guidelines for State Contractors' The model workplace guidelines developed by the DSHS, TB/HIV/STD Section, as required by HSC §85.012, 'Model Workplace Guidelines"; and adopted as HIV/STD Policy No. 090.021, are considered the minimum standards for the development of guidelines for state agencies. This policy also serves as the minimum standard for contractors of certain designated state agencies (see page 6) and organizations funded by those state agencies (HSC §85.113). These guidelines are also the standard for health care facilities licensed by DSHS and the Department of Aging and Disability Services as stated in HSC §85.010, 'Educational Course for Employees and Clients of Health Care Facilities.' 3.0 Who Must Use Workplace i li s 3.1 State agencies State law requires that each state agency adopt and carry out workplace guidelines. The agency's workplace guidelines should incorporate, at a minimum, the DSHS model workplace guidelines in this policy. 3.2 State contractors A program involving direct client contact, which contracts with or is funded by any of the state agencies listed on page 6, will adopt and carry out workplace guidelines as stated in HSC §85.113. 4.0 Why Have GuideLines Employers should develop and carry out policies and education programs concerning potentially limiting medical conditions before a crisis arises. Such policies and education programs help reduce employees' fears and misconceptions about HIV/AIDS and help to: httpsl/wvvw.dshs.state.tx.us/hivstd/policy/policies/090-021.shtm 1/4 6,11/2020 r Texas DSHS HIV/STD Program - HIV/STD Program Policy 090.021 • provide current and accurate scientific evidence that people with HIV infection do not pose a risk of transmitting the virus to co-workers through ordinary workplace contact; + provide workers with current information about HIV risk reduction for employees and their families; • avoid conflict between the infected employee and the employer regarding discrimination or other employment issues; • prevent work disruption and rejection of the infected employee by co-workers; • inform employees that they have rights regarding work continuation, confidentiality of medical and insurance records, and general health and safety; • provide specific and ongoing education and equipment to employees in health care settings who are at risk of exposure to HIV, and to assure that appropriate infection -control procedures are used; and • reduce the financial impact, legal implications, and other possible effects of HIV/AIDS in the workplace. 5.0 Development of Workplace Policy Content Individuals infected with HIV have the same rights and opportunities as other individuals. While some employers prefer a policy specific to HIV/AIDS and its unique issues, others prefer a general policy concerning illnesses and disabilities. A general po[iry should address HIV/AIDS in the same way as other major illnesses. We encourage use of the following statements in agency polity. Use of a person's HIV status to decide employment status, service delivery, or to deny services to HIV infected individuals is not acceptable. Employees who believe that they have been discriminated against because of HIV or AIDS should contact the personnel office to discuss the matter, or initiate action through the agency's grievance procedure. Other Legal options may also be available. This policy is consistent with current information from public health authorities, such as the Centers for Disease Control and Prevention (CDC) of the United States Public Health Service, and with state and federal laws and regulations. While the approach and resolution of each employee's situation may vary, similar issues may arise. A workplace policy should address the foLLowing issues about HIV/AIDS and other life-threatening illnesses or disabilities. A. Discrimination, The Amerkans with W5dbiUtiesAct0DA) of 2990 prohibits discrimination against people with disabilities, which include HIV and AIDS, In employment, public accommodations, public transportation, and other situations. A specific policy statement that no one will be denied employment or employment opportunities because of a disability, satisfies the employer and employee's need to address discrimination. Such a statement might be, 'This agency complies with the ADA protections of all people with disabilities against discrimination in job application procedures, hiring, promotions, discharge, compensation, job training, and other terms or conditions of employment: Managers may want to define ways in which they will deal with discriminatory actions. B. Desire and AbiLityto Work. A workplace policy should address the infected employee's desire and need to work, and the Infected employee's value to the workplace. Such a statement reassures employees that the employer supports them. The health status of someone with HIV may vary from healthy to critically ill In the work setting, the ultimate concern is whether or not the employee can satisfy job expectations. A policy statement may say, for example, "Procedures may be adapted to provide reasonable accommodation so that people with disabilities may remain employed and productive for as long as possible. ALL employees, however, are expected to perform the essential functions of their job with or without reasonable accommodation. C. Performance Standards. The ADA provides protections for disabled persons 'qualified" to perform his or her job. And although an employer may be expected to provide reasonable accommodation to a disabled employee or applicant; employers may terminate employees and refuse to hire individuals who cannot perform the essential functions of the job with or without the reasonable accommodation. One suggested statement is, 'While the ADA does protect disabled employees from employment discrimination, all employees, those with and without disabilities, have the same performance and conduct standards regarding hiring, promotion, transfer, and disrnlssM,' D. Reasonable Accommodation. The ADA requires employers to provide reasonable accommodations for employees with disabilities. Employers do not have an obligation to provide any accommodation that imposes an undue hardship on the employer. Specific questions about the issue of reasonable accommodation and undue hardship should be directed to staff responsible for coordinating the requirements of the ADA. Such a policy statement might read, 'The following options may be considered for people with HIV/AIDS: 1 • possible assignment or reassignment of job duties, • working at home, • leaves of absence, and https:/ANww dshs.state.tx.us/hivstd/policy/policies/090-021.shtm 2/4 6/1/2020 A- Texas DSHS HIV/STD Program - HIV/STD Program Policy 090.021 • flexible work schedules' E. Confidentiality and Privaq. O nT,7; ens tk it recesve.f`ands from a state agency fir *est;er .3t Q, d'+reel ! lient services as. piibVmft shall develop and use confidentiality guidelines to protect their clients' HIV/AIDS related medical information (HSC 985,115, "ConfidentiaLity Guidelines"). Organizations that fail to adopt and use confidentiality guidelines are ineligible to receive state funds. Employees are not required to reveal their HIV status to employers. All medical information that an HIV infected employee provides to medical or management personnel is confidential and private. Employers may not reveal this information without the employee's knowledge and written consent, except as provided by law (HSC 581.103, "Confidentiality; Criminal Penalty"). A suggested policy statement might be, "This agency wiLL protect the confidentiality of employee medical records and f information. Written consent of the employee must be obtained to share any confidential information with other staff. Those with access to confidential information must maintain strict confidentiality and privacy, separating this information from employees' personnel records. Individuals who fail to protect these employee rights commit a serious offense, which may be cause for litigation resulting in both civil and criminal penalties, and may result in dismissal: F. Co-worker Concerns. Employers need to be aware of the concerns that co-workers may have about an HIV Infected co-worker. A polity statement that acknowledges employee concerns and offers HN/AIDS education helps to increase awareness and decrease fear. Equally important is a policy statement that clarifies the limits of an employer's response to co-worker concerns, e.g., "Employees do not have the right to refuse to work with someone who has any disability." G. Employee Education. Any health care facility licensed by the DSHS or the Department of Aging and Disability Services must require its employees to complete an educational course about HIV infection (HSC §85.010). A suggested policy statement may be: AU employees will receive education about methods of transmission and prevention of HIV infection and related conditions: In response to HSC, 585.004, "Educational Programs: DSHS developed model education program guidelines. These are available from DSHS, TB/HIV/STD Section, Post Office Box 149347, MC 1873, Austin, Texas 78714, (512) 533-3000. Employers may also find the CDCs educational kit, Business Responds to AIDS, useful in developing educational courses. HIV/AIDS education should address employee concerns about HIV communicability to themselves, their families, and co-workers. Experience shows that educated co-workers usually respond to persons with HIV/AIDS with support, rather than with fear and ostracism due to misconceptions. Education programs must stress that agency employees who provide direct client services may face occupational exposure to a cLient's blood, semen, vaginal secretions, or other body fluids that are considered to be high-risk for transmission of blood borne pathogens, including HIV/AIDS. All individuals receiving direct services are clients and include individuals who are physically or mentally impaired and Individuals confined to correctional or residential facilities. All state agencies should have, as part of their employee education program, comprehensive policies and protocols based on universal precautions, body substance isolation, and barrier methods, These precautions prevent the spread of infection in clinical settings. The employer's careful planning wilt reflect a commitment to the health and well-being of the work force and the community being served. H. Assistance. Some employers have designated benefits programs available to employees and family members with HIV infection. Such programs may: • make referrals for testing, counseling, medical, and psychosocial services, • provide HIV/AIDS workplace training for managerial staff, • serve as a liaison between management and the employer's clinical and occupational health programs, and • provide counseling for employees who irrationally fear co-workers or clients. Employers who have no employee assistance program may consider working with other organizations that provide assistance. Some of these groups include Local health departments, AIDS services organizations, American Red Cross chapters, community support groups, clinical treatment and counseling services, and the religious community. A suggested policy statement might be: An employee who wants assistance concerning a disability or a life-threatening illness should contact the Personnel Office. This agency offers the following resources to help employees and managers deal with these Issues: • education and information concerning HIV/AIDS; • confidential referral to supportive services for employees and dependents affected by fife -threatening illnesses; and • benefits consultation to help employees effectively manage health, leave, and other benefits." 6.0 Where to Go for Help Refer employees to the CDC HIV/STD Information line at 1(800) CDC -INFO (English/Espafiol) or other appropriate resource. https:/ANww.dshs.state.tx.usihivstd/policylpolicies/090-021.shtm 314 611/2020 0 Texas DSHS HIV/STD Program - HIV/STI) Program Policy 090.021 Health and Safety Code §85.113, 'Workplace Guidelines for State Contractors' states An entity that contracts with or is funded by... to operate a program involving direct client contact shall adopt and implement workplace guidelines similar to the guidelines adopted by the agency that funds or contracts with the entity." H.B. 2292, 78th Leg., abolished 10 of the 12 existing health and human services agencies and transferred their powers and duties to three new state agencies and to the Health and Human Services Commission, therefore rendering the state agency list found in HSC §85.113 obsolete. The List below reflects the state agency consolidation brought about by H.B. 2292 and Identifies the state agencies to who HSC §85.113 applies. • Department of Aging and Disability Services • Department of Assistive and Rehabilitative Services • Department of State Health Services Health and Human Services Commission • Texas Department of Criminal Justice Texas Juvenile Justice Department 8.0 Revision History to Action Section . . ... ........ . . . 9/1/2017 Changed "TB/HIV/STD Unit" to 'TB/HIV/STD Section" to reflect new program - designation 9/4/2014 Converted format (Word to HTML) 11/113/2004 Updated references to various state agencies in this policy reflect All implementation of H.B. 2292. Passage of H.B. 2292 by the 78th Texas Legislature abolished 10 health and human services agencies and transferred the powers and duties of those agencies to three new state agencies and to the Health and Human Services Commission. Additional text was added as necessary. Lost updoted November 20, 2017 hdps:ilwww.dahs.state.tx.urdhivstd/policy/policies/090-02l.shbn 4/4