Thanks to the excellent drugs we have today to control HIV infection, the vast majority of HIV-positive people are ready, willing and able to work. But what if their employer harbors prejudices against people with HIV? What if a restaurant owner, for example, is afraid that a person with HIV might pass it along to his customers? What if a factory owner doesn't want to hire a person with HIV for fear they might soon get too sick to work? What if an office manager just doesn't want someone with HIV around?
As an HIV-positive employee, you have the same responsibility to your employer as any other employee: To do the job you were hired to do to the best of your ability.
The fact that you are an HIV-positive employee should not matter any more than if you had diabetes or any other chronic ailment or disease. Unfortunately, because there is still a stigma associated with HIV and so many people – who may be your superiors or co-workers – who are uninformed or just ignorant of HIV, you need to understand your protections and options in case a problem does arise at work.
DISCLOSING YOUR STATUS
First, know that there is no legal reason to disclose your HIV status at the workplace. The U.S. Occupational Safety and Health Administration (OSHA) guidelines states, employees who are HIV-positive are not required to disclose their condition to employers So, be very careful if you do and make sure there is a good reason for it. One reason you may want or need to is if you are unable to perform the basic functions of your job due to HIV-related issues. Even in these situations, you can often just fall back on the Americans with Disabilities Act (which is discussed later) by saying you have an illness or disability covered by the ADA.
Be careful and think through disclosing your status to co-workers who are or who have become friends. Even if you ask for confidentiality, a slip of the tongue, gossip or even a souring of the relationship could put you in a situation you otherwise wouldn’t have to deal with. Also, don’t assume the outcome of disclosing your status with a co-worker will be well accepted. It might not.
KNOW YOUR RIGHTS AND PROTECTIONS
Working people with HIV are protected by the Americans with Disabilities Act (ADA), passed by congress in 1990.
You are considered to have a “disability” if you have a physical or mental impairment that substantially limits one or more major life activities. People with HIV, both symptomatic and asymptomatic, are protected by the law.
Additionally, the ADA protects people who are discriminated against because they associate with someone who is HIV positive.
Some small businesses with less than 15-employees are exempt from the ADA but all other private employers are prohibited from discrimination. The ADA also prohibits all public entities, regardless of size, from discriminating against qualified individuals with disabilities.
The ADA covers and prohibits discrimination in all aspects of employment. This includes application procedures, interviews, hiring, training, wages, benefits (including health insurance), leave, promotions and all other activities.
The ADA requires employers to make “reasonable accommodations” for people with disabilities. This is a modification or adjustment to the job that enables an employee with a disability to perform the essential job functions.
It is your responsibility to ask your employer for a “reasonable accommodation.” As an example, if you are experiencing some side effects from your medications and have to adjust your schedule, you might ask for a reasonable accommodation to come into work later and leave later. Be aware, that it is legal for your employer to ask for medical documentation to allow for your request and it can be denied if it is seen as imposing an undue hardship on the operation of the business. Your employer also does not have to give you your first or best choice of accommodation as long as he presents an effective one.
There is one caveat to the ADA that an employer can exclude individuals from employment or job activities that pose a direct threat to the health and safety of themselves and others. This cannot be assumed, however, and must be medically supported. HIV is very rarely a “direct threat.”
In addition to the ADA, HIV-positive employees as well as other employees are protected by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), which carries heavy fines for disclosing an employee’s medical history and the Family Medical Leave Act (FMLA), which provides up to 12-weeks of unpaid leave to deal with medical issues. You can use the FMLA time incrementally for doctor’s visits as an example.
The ideal situation is to do such a good job that your employer would never dream of letting you go for any reason. Every employee should try to make himself or herself indispensable. Superior performance is the best job security you can get. But, if discrimination does exist, you have options.
WHAT TO DO AND WHERE TO START
Because you have protections under the ADA as an HIV-positive employee doesn’t mean you can’t be fired or discriminated against. It just won’t be for the reason that you are HIV-positive. If you feel that you have been unfairly terminated or discriminated against, here are some things you can do and places to look for help.
First, keep a detailed file of all performance reviews and any other documented, work related items – good or bad.
Next, if you suspect discrimination, follow the chain-of-command properly at your place of business until the problem is resolved – supervisor, human resources officer, etc.
If the problem can’t be solved within the company, it may be time to look for help outside. Here are some places to start:
- An applicant or employee can file a complaint with the nearest Equal Employment Opportunity Commission Office within 180 days of the discriminatory incident. The EEOC will investigate and attempt to correct the problem. It may also issue the employee a "right to sue" letter, which allows the victim to sue the employer directly in federal court for violations of the ADA.
- Your local AIDS Service Organization (ASO). ASOs have a wealth of information, contacts and services to help you.
- U.S. Department of Justice’s ADA website at www.ada.gov.
- The American Civil Liberties Union (ACLU) at www.aclu.org. Search under “HIV discrimination.”
- OSHA has requirements for employers if their employees come into contact with blood or other bodily fluid as a part of their job description. These requirements include training, supplied protective equipment, exposure control and proper, up to date record keeping of incidents and training that has been conducted. If your employer is not compliant with the regulations, there can be moderate to severe penalties. Complaints can be filed and whistleblower information can be found at www.osha.gov.
If you consult an attorney make sure he has an HIV-related background. It’s best to get a referral from your ASO. Most employment discrimination issues have statutes of limitations. Be sure to act if you feel you’ve been a victim of discrimination or you could lose your rights.
Copyright 2018, Positive Health Publications, Inc.
This magazine is intended to enhance your relationship with your doctor - not replace it! Medical treatments and products should always be discussed with a licensed physician who has experience treating HIV and AIDS!