Article

HIV at Work: Your ADA Rights to Privacy and Fair Treatment

Can an employer ask about your HIV status, tell coworkers, or fire you over safety fears? How the ADA protects applicants and employees living with HIV, what accommodations can look like, and what employers can still require.

8 min read

HIV Is Treated as a Disability Under the ADA in Virtually All Cases

Title I of the Americans with Disabilities Act applies to private employers with 15 or more employees for 20 or more weeks in the current or preceding calendar year and to state and local government employers; federal workers are covered through the Rehabilitation Act, and many state laws reach smaller employers. The EEOC's regulation at 29 CFR 1630.2(j)(3) describes a small group of impairments that, given their inherent nature, will virtually always be found to substantially limit a major life activity. HIV infection is on that list: the regulation says it should easily be concluded that HIV infection substantially limits immune function. Under 42 U.S.C. Section 12102(4)(E), that question is decided without regard to the helpful effects of mitigating measures such as medication, so an employer should not argue you are not disabled because treatment keeps you healthy. You are also protected if an employer treats you worse because it believes you have HIV, although coverage only under that regarded-as definition does not entitle you to accommodation.

Keeping Your HIV Status Private

The EEOC's 2015 fact sheet for workers with HIV says that in most situations you can keep your condition private. Under 42 U.S.C. Section 12112(d), an employer generally cannot ask whether you have a disability, or about its nature or severity, before making a conditional job offer. The EEOC lists four situations where medical questions are allowed: affirmative action for people with disabilities, where answering is your choice; when you ask for a reasonable accommodation; after a job offer, if everyone entering the same job category is asked the same questions; and on the job when there is objective evidence that you may be unable to do your job or may pose a safety risk because of your condition. Under 29 CFR 1630.14(c), an employee medical exam or inquiry must be job-related and consistent with business necessity.

Confidentiality and Coworkers

Under 29 CFR 1630.14, medical information an employer obtains through a permitted exam or inquiry must be kept on separate forms, in separate medical files, and treated as a confidential medical record. Supervisors and managers may be told about necessary work restrictions and accommodations, first aid and safety personnel may be told when emergency treatment might be needed, and government officials investigating compliance get relevant information on request. The EEOC's fact sheet says that if you disclose your condition, the employer must keep the information confidential, even from coworkers, although you may choose to tell coworkers yourself. A manager who shares your diagnosis in a team meeting or group chat may be violating those rules.

Safety Fears and the Direct Threat Standard

The ADA lets an employer require that a worker not pose a direct threat to the health or safety of others. Under 29 CFR 1630.2(r), a direct threat means a significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation. The decision must rest on an individualized assessment of your present ability to safely perform the essential functions of the job, using reasonable medical judgment based on the most current medical knowledge or the best available objective evidence, and considering the duration, nature, severity, likelihood, and imminence of the potential harm. The EEOC's fact sheet says employers cannot rely on myths or stereotypes about HIV when deciding what you can safely or effectively do. A coworker's discomfort, a customer's fear, or a general belief that HIV is risky is not an individualized assessment.

Food Handling Jobs

Under 42 U.S.C. Section 12113(e), the ADA lets an employer refuse to assign, or continue to assign, a person to a food-handling job when the person has an infectious or communicable disease that is transmitted to others through the handling of food, that appears on the list published by the Secretary of Health and Human Services, and that cannot be eliminated by reasonable accommodation. Outside that list, an employer that wants to exclude a worker over infection risk generally must meet the individualized direct threat standard described above. The statute does not give restaurants or food businesses a general license to exclude workers with any infectious condition. If you were moved off the line or out of the kitchen after your employer learned your HIV status, ask in writing what basis it relied on.

Common Accommodations for Workers with HIV

The EEOC's fact sheet says accommodation may be available if your job performance could be affected by HIV, the side effects of HIV medication, or another medical condition that developed because of HIV. Its examples include altered break and work schedules, such as frequent breaks to rest or use the restroom or a modified schedule for medical appointments; changes in supervisory methods; accommodations for visual impairments; ergonomic office furniture; unpaid time off for treatment or recuperation; permission to work from home; and reassignment to a vacant position if you can no longer do your job. Under 42 U.S.C. Section 12111(9), reasonable accommodation includes part-time or modified work schedules and reassignment to a vacant position. The EEOC notes these are only examples, and you may request any change you need because of your condition.

Asking for an Accommodation Without Revealing Your Diagnosis

The EEOC's reasonable accommodation guidance says you may ask in plain English and do not have to mention the ADA or use the words reasonable accommodation. The HIV fact sheet says your employer may ask you to put the request in writing, describe your condition and how it affects your work, and provide a doctor's letter. If you do not want the employer to know your specific diagnosis, the EEOC says it may be enough to provide documentation that describes your condition more generally, for example as an immune disorder. The reasonable accommodation guidance also says that in most situations an employer cannot request your complete medical records. The fact sheet notes that many people wait until after a job offer to ask, because discrimination before an offer is harder to prove.

What an Employer Does Not Have to Provide

The EEOC's fact sheet says an employer does not have to remove the essential functions of your job, let you do less work for the same pay, or accept lower-quality work, and it does not have to excuse poor performance even when a medical condition or medication side effects caused it. That is why asking for an accommodation before problems develop or worsen gives you the strongest footing. An employer also need not provide an accommodation that would impose an undue hardship, which 42 U.S.C. Section 12111(10) defines as significant difficulty or expense in light of factors such as cost and the employer's resources, and it may choose among effective options. It cannot charge you for the cost of an accommodation.

Firing, Forced Leave, Harassment, and Retaliation

The EEOC's fact sheet says employers may not discriminate against you simply because you have HIV, including by firing you, rejecting you for a job or promotion, or forcing you to take leave. It also says harassment based on a disability is not allowed and that, once you report it, the employer is legally required to take action to prevent it from happening again, so follow any internal reporting procedure. Under 42 U.S.C. Section 12203, an employer may not retaliate against you for opposing disability discrimination or taking part in an ADA charge or investigation, and it may not coerce, intimidate, threaten, or interfere with you for exercising ADA rights. The fact sheet says an employer cannot fire you or refuse to hire or promote you because you asked for or need a reasonable accommodation.

Deadlines and Records to Keep

A charge with the EEOC generally must be filed within 180 calendar days of the discriminatory act, extended to 300 days where a state or local agency enforces a law prohibiting the same kind of discrimination; federal employees generally must contact an agency EEO counselor within 45 days. Keep copies of accommodation requests and replies, any documentation you provided, performance reviews before and after your employer learned your status, written warnings, and messages showing that your diagnosis was shared or mocked. Write down dates and names while they are fresh.

When to Get a Free Consult

Consider a free consult if you were asked about HIV before a job offer, your status was shared with coworkers, you were removed from a job over safety fears without an individualized assessment, you were refused schedule changes for medical appointments, you were forced onto leave, or you were fired soon after disclosing your status or asking for an accommodation. A lawyer can review whether your employer is covered, how the deadlines apply, and what evidence to preserve. YesLawyer offers a free consult, and there is no fee unless we win.

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