Employment Law Report

The EEOC Weighs in on HIV-Positive Workers

By Amanda Warford Edge

The Equal Employment Opportunity Commission (EEOC) has long considered HIV infection to be a disability within the scope of the Americans with Disabilities Act (ADA). From 1997 to 2014, the EEOC received in excess of 4,000 charges alleging ADA violations based on HIV status. In 2014, the EEOC resolved 197 charges and obtained over $800,000 for individuals who filed charges based on HIV status. The EEOC has also filed several lawsuits over the past few years against employers based on claims alleging failure to hire, discrimination and failure to accommodate individuals with HIV.

On December 1, 2015, in conjunction with World AIDS Day, the EEOC posted two publications that address HIV-positive workers. Through these publications, the EEOC makes clear that employers “cannot rely on myths or stereotypes about HIV infection when deciding what [they] can safely or effectively do.”

The first publication, entitled “Living with HIV Infection: Your Legal Rights in the Workplace Under the ADA,” removes all doubt that those with HIV: (1) have workplace privacy rights; (2) are protected from discrimination because of their HIV condition; and (3) may be entitled to reasonable accommodations. The second publication, entitled “Helping Patients with HIV Infection who Need Accommodation at Work,” is a guide for health care professionals who treat HIV-positive patients.  It includes information on what details a professional should provide to a patient’s employer about his or her HIV infection, as well as what a physician can do to assist the patient in securing accommodations. Together, these publications suggest that going forward, the EEOC will continue to take an aggressive approach toward HIV-related cases. Employers should expect greater scrutiny with respect to how their HIV-positive applicants and workers are treated.

Privacy. Regarding privacy, the EEOC notes that while in some circumstances, employers are allowed to ask medical questions (i.e., when an employee asks for a reasonable accommodation), employers must keep the information learned about HIV confidential, including from the coworkers of the HIV-positive worker. It is wise for employers to review and, if necessary, revise their policies to ensure that all workers understand how HIV cases are handled. That way, if a privacy breach occurs, the fact that one’s HIV status was not disclosed will not come as a surprise.

Protection from Harassment and Discrimination. The EEOC also makes clear that harassment and discrimination are prohibited under the ADA. Employers cannot harass or discriminate against an employee simply because the employee has the HIV infection. This means that an employer cannot terminate an HIV-positive worker due to his or her HIV, nor can the employer reject the worker for a promotion due to his or her HIV. Before an employer can reject a worker based on his or her HIV, “it must have objective evidence that [the employee is] unable to perform [his or her] job duties, or that [he or she] would create a significant safety risk, even with a reasonable accommodation.”

Accommodations. Regarding accommodations, the EEOC provides examples to employers of accommodations that might enable an HIV-positive employee to perform the essential functions of his or her job. The EEOC notes that more frequent breaks to rest or use the restroom might be an option, as well as modified work schedules, permission to work from home, and/or unpaid time off to accommodate medical appointments or recuperation. The EEOC advises HIV-positive workers that it “may be better to ask for an accommodation before any problems occur or become worse.” Employers need to be ready to handle those requests and engage with HIV-positive workers in the interactive process, just as they would with any disabled worker under the ADA’s protections.