According to a December 2015 press release, in Fiscal Year 2014 alone, the U.S. Equal Employment Opportunity Commission (“EEOC”) resolved approximately 200 charges of discrimination based on HIV status, resulting in over $825,000 for job applicants and employees with HIV who were unlawfully denied employment or reasonable accommodations. See December 1, 2015 EEOC Press Release. Also in December 2015, the EEOC issued two new publications that articulate the workplace rights of persons with HIV under the Americans with Disabilities Act (“ADA”). While the publications themselves do not work any substantive changes in the law, they reinforce the EEOC’s efforts to combat discrimination against individuals with HIV in the work place and to advance President Obama’s “National HIV/AIDS Strategy” or “NHAS.” NHAS was released in 2010, and aims to: (1) decrease the occurrence of HIV/AIDS in the American public, (2) reduce the stigma associated with HIV/AIDS, (3) ensure affordable access to healthcare for all persons with HIV/AIDS, and (4) eliminate discrimination against persons suffering from HIV/AIDS. The EEOC’s publications provide useful guidance to employers regarding employment-related decisions involving individuals with HIV.
The first publication, entitled “Living with HIV Infection: Your Legal Rights in the Workplace under the ADA,” briefly describes the protections afforded by the ADA to persons with HIV. First, HIV qualifies as a “disability” under the ADA, because it substantially impairs the functioning of the immune system. See Bragdon v. Abbott, 524 U.S. 624, 641-42 (1998). Consequently, persons with HIV are protected by the ADA’s discrimination provisions, which prohibit employers from discriminating against, harassing, firing, demoting, or taking other adverse employment actions against employees based on their medical condition. In addition, persons with HIV generally may keep their condition private from their employer, both before receiving a job offer and after beginning work. However, an employer is allowed to ask medical questions about an employee’s condition when it is engaging in affirmative action for people with disabilities, in which case, an employee may choose whether to respond. In addition, an employer may ask medical questions concerning an employee’s condition after the employer has made a job offer, but before employment begins, provided that all individuals entering the same job category are asked the same questions. Furthermore, once on the job, an employer may ask an employee medical questions concerning the employee’s HIV status, but only if the employer has “objective evidence” that the employee may be unable to do her job or poses a “safety risk” because of her condition.
In addition to those basic ADA rights, employees with HIV are entitled to seek “reasonable accommodation” under the ADA if their condition prevents them from capably performing their job. For example, employees may ask for: (1) unpaid time off for treatment or recuperation, (2) permission to work from home, (3) reassignment to a different position, or (4) accommodations for visual impairment. In order to get a reasonable accommodation, the employee must ask her employer for one, and the employer may ask medical questions about the employee’s condition and/or require the employee to submit medical documentation explaining the diagnosis and why HIV requires a reasonable accommodation. Importantly, an employer does not have to give an employee a reasonable accommodation if it involves “significant difficulty or expense,” or if the employee is not capable of adequately performing the job even with reasonable accommodation. Finally, an employer may terminate an employee based on the employee’s HIV status but only if the employer has objective evidence that the employee is unable to perform her job duties, or that the employee poses a “significant safety risk,” even with a reasonable accommodation.
The second publication, entitled “Helping Patients with HIV Infection Who Need Accommodations at Work,” is directed towards doctors, and explains how doctors can help patients with HIV seek reasonable accommodation and function effectively in their job. If an employee asks her employer for reasonable accommodation, the employer may require the employee to submit documentation from the employee’s doctor which: (1) explains the nature of the employee’s medical condition, (2) explains the symptoms and functional limitations caused by HIV, and (3) recommends particular reasonable accommodations and explains how they would help the employee perform her job. However, if the employee would prefer that her condition remain private, the doctor is not required to state that the employee has HIV, and rather can simply state that the employee has an “immune disorder.”
Additionally, an employer may ask an employee to provide an opinion from the employee’s doctor as to whether the employee poses a “direct threat” of causing substantial harm to the employee or others on the job. If asked, the doctor should consider whether the employee poses a direct threat, taking into account: (1) the employee’s actual daily working conditions, (2) any reasonable accommodations which would eliminate or reduce the danger posed by the employee’s condition, and (3) any treatment regimens that help reduce the risk of harm to others.