Whether the U.S. Equal Employment Opportunity Commission is taking advantage of the fact that HIV infection has been in the news lately (thanks to Charlie Sheen’s recent disclosure about his own HIV status) or the timing is pure coincidence, the EEOC earlier this month issued two publications regarding the rights afforded by the Americans with Disabilities Act to job applicants and employees living with HIV. Although the EEOC previously issued a more general guidance about the ADA’s protections for individuals with HIV/AIDS in 2012, these two new publications are notable in that they are specifically directed to HIV positive applicants and employees and the health care professionals who provide them medical services.
Living with HIV Infection: Your Legal Rights in the Workplace Under the ADA reiterates that HIV infection is a disability under the ADA that protects the applicant or employee from discrimination and harassment and obligates the employer to make reasonable accommodations to allow infected applicants to interview and, if hired, to perform the essential functions of their positions. This guidance is directed to applicants and employees and educates them about when they may be required by an employer to reveal their HIV status (when requesting a reasonable accommodation, for example), the types of accommodations that may be available, and how to request such accommodations. It also confirms that it is unlawful for an employer to refuse to provide an HIV positive applicant or employee with reasonable accommodation, to discriminate against them, or to harass, or allow coworkers to harass, them.
Helping Patients with HIV Infection Who Need Accommodation at Work is a guide for the health care professionals who treat patients with HIV. It educates them about the basic requirements of the ADA, the types of accommodations to which their patients may be entitled, and what they can do to assist their patients in getting such accommodations. It also provides a very specific roadmap to physicians, describing the information they should provide to their patients’ employers, and even suggests that physicians describe HIV infection as an “immune disorder” in the event that a patient does not want to reveal their HIV status to his or her employer.
Employers should be aware of these communications and review them if they now have an HIV positive employee or learn in the future that an applicant or employee is HIV positive. HIV positive applicants and employees, as well as their health care providers, will be well-educated about their rights under the ADA and how to contact the EEOC if and when they believe that their rights have been violated.