Today’s post comes to us courtesy of Brian McGinnis, an associate in our Labor and Employment Department in our Philadelphia office.
The Centers for Disease Control and Prevention estimate that over 1.2 million Americans live with an HIV-positive health status. Under the Americans with Disabilities Act (“ADA”), HIV-positive status qualifies as a disability, providing a variety of legal protections to HIV-positive employees who work for qualifying employers. These provisions include protections against discrimination and harassment on the basis of an employee’s HIV-positive status.
The Equal Opportunity Employment Commission (“EEOC”) recently addressed this issue, publishing a fact sheet entitled, “Living with HIV Infection: Your Rights in the Workplace under the ADA.” This fact sheet provides guidance to HIV-positive employees on a variety of their rights under the ADA, particularly the process of seeking a reasonable accommodation from their employer.
During the process of seeking a reasonable accommodation, the EEOC notes that employees may not need to disclose their HIV-status; rather, it may be sufficient for employees to state they have an immune disorder. Whether an employee discloses his or her HIV-positive status or provides a more generalized description, it is critical that employers keep this information confidential.
The EEOC suggests a variety of proposals that could qualify as a reasonable accommodation, depending on the circumstances, including: modified schedules (including frequent rest breaks, bathroom breaks, as well as flexible time to schedule doctors’ or other medical appointments), unpaid time off for required treatment or recuperation, ergonomic office furniture, and permission to work from home, among others. This list, however, is non-exhaustive, and the EEOC encourages employees to request accommodations specific to their unique needs according to their condition.
It is also critical for employers to know they may face ADA liability if they take certain actions toward HIV-positive employees during this process on the basis of myths or stereotypes about HIV/AIDS. This reality is particularly noteworthy, given the history of misinformation, stigma, and stereotyping that has surrounded HIV/AIDS since it first came into the public eye in the late 1970s and early 1980s.
Because a broad range of reasonable accommodations may be sufficient for HIV-positive employees and because of the historic stigmatization of HIV-positive people, employers should consult knowledgeable counsel to ensure effective and appropriately sensitive management of the reasonable accommodations process. Doing so will not only help employers meet their legal obligations under the ADA, but can also promote a beneficial resolution for both employer and employee.