I’m HIV Positive and Worried About Employment Discrimination

Discrimination isn’t as overt as it once was during preceding generations, but discrimination is still a rampant problem affecting those residing within the United States. Millions of Americans are discriminated against for various reasons, such as race, country of origin, religion, sexual orientation, gender, etc. Unlike other identifiers, it is difficult to shield your race or gender from the public, and we are not afforded special protections under the law simply because we are African-American or female. However, other identifiers such as an HIV-positive status does not present itself to the public the way that race and gender does.

More than 1.2 million people residing in the United States are living with HIV, and almost 1 in 8 are unaware of their infection. Gay, bisexual, and other men who have sex with men, particularly African-American men, are most seriously affected by HIV. The CDC conducted a study that determined that African-Americans face the most severe burden of HIV. African-Americans account for roughly 12% of the U.S. population, but accounted for an estimated 44% of new HIV infections in 2010.

Many fear that their HIV-positive status, which is very personal in nature, may eventually become public knowledge. However, there are laws that have been enacted that grants certain rights regarding privacy and limitations of access to one’s medical records, and places limits on the amount of information that one has to disclose about their HIV status to their employer and others.

Workplace discrimination based on an HIV-positive status is illegal. Individuals living with disabilities, such as HIV find protection under the Americans with Disabilities Act (ADA). Individuals afflicted with HIV live with physical impairments that significantly limit their day-to-day activities, which is why the ADA protects them.

The ADA guarantees equal opportunity for employment for those living with HIV. Employers may not base their decision to hire or fire an employee out of fear that the individual may become ill in the future as a result of the virus. The decision to hire an individual must be based on the individual’s qualifications as they exist during the interview process. Additionally, employers may not avoid hiring a qualified individual because they are afraid of the potential for higher medical insurance costs or sick leave for that employee. Under the ADA, an employee may not be denied access to health insurance enrollment generally available to other employees in the company due to their HIV positive status.

An employer is prohibited from singling out a prospective employee by requiring them to submit to a medical examination for the purpose of determining one’s HIV status prior to making a job offer. Even so, employers are prohibited from accessing those results without prior written consent from the employee. During the interview process an employer may not inquire about an individual’s disability or the seriousness of the disability. However, an employer may inquire about an individual’s ability to perform job related duties and responsibilities. An employer’s decision to hire someone after conducting a post-offer medical examination must not be based on one’s HIV-positive status alone, without some other complication. This does not mean that an employer cannot make a conditional job offer while awaiting an adequate outcome of a post-offer medical examination so long as this is required of all new employees with the same job title.

Although, an employer may not use an employee’s status against them the ADA does require that an employee’s status be securely kept on file once it has been discovered. AN individual’s status must be kept confidential and separate from general personnel files. Appropriate safeguards must be put in place to protect the employee’s status. Further, this file must only be accessed in limited circumstances.

Under the ADA, employers are required to make “reasonable accommodations” for their disabled employees. A “reasonable accommodation” is any modification or adjustment to a job, application process, or work environment that will enable the qualified applicant or employee with a disability to perform the essential functions of a job, or enjoy the benefits and privileges of employment. The ADA does not impose a requirement that an employer make accommodations that would result in undue hardship for the business.

Reasonable accommodations are only required to be made by an employer for known disabilities. Therefore, if an employee elects not to disclose their status then it is unlikely that the accommodation will be made. In some instances, an employee may only choose to disclose that they have a disability that is protected by the ADA requiring reasonable accommodations without specifying what the disability is. Under this approach, an employer would be well within his right to require medical documentation of the disability prior to making the accommodation.

Employees do have some responsibilities regarding their status. If an HIV-positive employee is a health care worker they must inform their occupational health department of their status.

Many states have enacted laws that address employment discrimination based on an individual’s HIV. Florida Statute §760.50 states that employers are prohibited from requiring a prospective employee from submitted to an HIV test as a condition of hiring, promotion, or continued employment unless an HIV-negative status is a bona fide requirement for the desired position. An employer has the burden of proving that there is a bona fide requirement that the employee be HIV-negative. To show this the employer must prove that: (1) the HIV test is necessary to determine whether the employee can perform the tasks and duties of a particular job in a reasonable manner or whether the employee will pose a significant threat of infecting others during the course of normal work activities; and (2) there is no alternative or reasonable accommodation available.

Under Florida law, an employer may not deprive or tend to deprive a healthcare professional or healthcare worker of employment opportunities due to their status with respect to compensation, conditions, or privileges of employment because they provide treatment to individuals infected with HIV. Additionally, if an employer fails to maintain the confidentiality of an employee’s status after it has been acquired for purposes of health insurance or life insurance benefits enrollment the employer will be liable for liquidated or actual damages, reasonable attorney’s fees, and any other relief that the court deems appropriate.

This is a brief overview of the ADA and other laws that govern an HIV-positive individual’s rights. For more detailed information about your legal rights regarding your HIV/AIDS status about this issue and others please contact a licensed attorney. If you have any questions please feel free to leave them in the comments section and I will respond to as soon as practical.

Jamaal Jones


This post was authored by Jamaal R. Jones, Esquire (Partner) of Jones Health Law, P.A. where we provide "On-Call Legal Services to Healthcare Professionals". For more information contact us at (305) 877-5054; email us at JRJ@JonesHealthLaw.com, or visit our website at www.JonesHealthLaw.com

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