Job Applicants May Keep HIV Status Private in Most Cases

By Roy Maurer Dec 8, 2015

Guidance documents issued by the U.S. Equal Employment Opportunity Commission (EEOC) Dec. 1 reminded employers that applicants are protected from employment discrimination and harassment based on HIV status and may keep their condition private in most cases before an employment offer is made.

“Individuals with HIV infection should know that the ADA [Americans with Disabilities Act] protects their rights in the workplace,” said EEOC Chair Jenny Yang. “These publications demonstrate our commitment to ensuring that individuals with HIV infection have full access to employment.”

The ADA applies to employers with 15 or more employees and makes no distinction between the stages of HIV infection, from those who have asymptomatic HIV to those suffering with the AIDS virus. During fiscal year 2014, the agency resolved almost 200 charges of discrimination based on HIV status, obtaining over $825,000 for job applicants and employees with HIV who were unlawfully denied employment and reasonable accommodations.

One of the EEOC’s publications, titled Living with HIV Infection: Your Legal Rights in the Workplace Under the ADA, explains HIV-positive applicants’ and employees’ legal protections under the ADA.

Generally, employers cannot ask applicants whether they are HIV-positive, or about any other medical condition, before making a job offer. However, an employer is allowed to ask medical questions in these three situations:

  • When engaging in affirmative action for people with disabilities. Applicants may choose to respond or not.
  • When applicants ask for a reasonable accommodation.
  • Once a conditional job offer is made and before an employee starts work, as long as this is done for all entering employees in a particular job category.

Employers are reminded that if candidates do talk about their condition for any reason, they are protected from discrimination and the information must be kept confidential if they are hired. “The ADA requires that employee medical information be kept separate from general personnel files in a confidential medical file, available only under limited conditions to supervisors, managers, first aid and safety personnel, and government officials investigating compliance with the ADA,” said Jon Hyman, a partner in the labor and employment group of Meyers Roman Friedberg & Lewis, based in Cleveland.

If an employer rejects an applicant after a post-offer disability-related question or medical examination and the applicant files a complaint with the EEOC alleging discrimination, agency investigators will closely scrutinize whether the rejection was based on the results of that question or examination. If the question or examination screens out an individual because of a disability, the employer must demonstrate that the reason for the rejection is job-related and consistent with business necessity.

Employers can consider health or safety issues when deciding whether to hire an applicant with HIV, but only under very limited circumstances, Hyman said. “The ADA does not protect employees who pose a direct threat—a significant risk of substantial harm—to the health or safety of the individual or to the safety of others, if that risk cannot be eliminated or reduced below the level of a direct threat by reasonable accommodation,” he explained.

Hyman said that for employers to take this route, they must establish, through “objective, medically-supportable methods,” that a significant risk of substantial harm could occur in the workplace. “For example, consider a worker with HIV who operates heavy machinery and who has been experiencing unpredictable dizzy spells caused by a new medication. That employee may pose a direct threat to his or someone else’s safety. If no reasonable accommodation is available, the employer would likely not violate the ADA if it removed the employee from the position until a physician certified that it was safe for the employee to return to the job.”

But Hyman pointed out that according to the EEOC, “Transmission of HIV will rarely be a legitimate ‘direct threat’ issue” because “there is little possibility that HIV could ever be transmitted in the workplace.”

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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