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Employees who are HIV-positive who want to request a disability accommodation from their employer without revealing their particular condition may do so, according to new guidance from the Equal Employment Opportunity Commission (EEOC).
Two EEOC publications released Dec. 1, World AIDS Day, address the stigma that HIV-positive employees face and offer a way for the employees to ask for help while maintaining privacy.
“HIV is still a challenging workplace issue,” said Peter Petesch, an attorney with Littler in Washington, D.C.
HIV causes AIDS, which has killed 658,507 people in the United States to date and which leads to the death of approximately 14,000 Americans each year, according to the Centers for Disease Control and Prevention.
The two publications—Living with HIV Infection: Your Legal Rights in the Workplace Under the ADA [Americans with Disabilities Act] and Helping Patients with HIV Infection Who Need Accommodations at Work “would have been welcome guidance 20 years ago,” Petesch said. But, he added, the publications offer a way for employees to document their disabilities without offering a specific diagnosis. This alternative is one way to deal with the ongoing stigma of having HIV.
While an employer generally is prohibited from asking employees about their disabilities, an employer may seek medical documentation of a disability after a reasonable accommodation request is made by someone who does not have an obvious disability. (Note that an employer may not ask a job applicant about a disability until after a job offer is extended.)
The guidance for individuals with HIV included a surprise: “If you do not want the employer to know your specific diagnosis, it may be enough to provide documentation that describes your condition more generally (by stating, for example, that you have an ‘immune disorder’).”
The guidance for doctors is similar: “Your patient may ask you to document his or her medical condition and some of its associated functional limitations, and to explain how a requested accommodation would help. If your patient asks you not to disclose the specific diagnosis, it may be sufficient to state the general type of disorder (i.e., ‘immune disorder’).”
The guidance doesn’t say that the employee will never have to supply a diagnosis, Petesch noted. “That would run against prior guidance.” Instead, if individuals feel uneasy about disclosing that they are HIV-positive, which still is stigmatized, they can give this a try, Petesch said.
While employers may have a legal right to find out if the “immune disorder” is HIV before granting an accommodation, Petesch said, they should think long and hard about how much information they need to know. On the one hand, some immune disorders, such as vitiligo, may not be serious enough to rise to the level of disability because they may not substantially limit a major life activity. But, on the other hand, employers may not want to get into a legal fight by pressing for more information, he noted.
David Fram, director of ADA and EEO Services for the National Employment Law Institute (NELI) in Golden, Colo., and a former EEOC attorney, was more critical of the publications’ language, saying it was “not entirely legally accurate.” (NELI is a continuing education organization that conducts conferences on employment law.)
Appeals courts have ruled that employers can get a diagnosis to back up a reasonable accommodation request, he said. “From a practical perspective, you may not want to get more if an employee says he has an immune disorder,” he noted. But, “from a legal perspective, you can get more.”
If an employer does find out that a worker is HIV-positive, it must keep that information confidential, even from co-workers. Fram said some courts have held that if an employee volunteers information about his or her disability, an employer need not keep that information confidential. But, he said, “The better approach is to keep all medical information confidential.”
For a different perspective, though, Patti Perez, an attorney with Ogletree Deakins in San Diego, said, “A doctor’s note that indicates an employee has an ‘immune disorder’ should, in most circumstances, suffice to show the employee is disabled for initial purposes of protection under the ADA.
“An analogous example involves commonly understood emotional or psychological conditions,” she elaborated. “For example, a doctor might indicate an employee suffers from ‘severe anxiety’ without necessarily indicating that the employee has PTSD [post-traumatic stress disorder] caused by a particular traumatic event.”
She said the lesson from the guidance is that “employers should usually focus their attention on the restrictions that result from the condition, rather than exact details about the condition itself.”
The guidance noted that employees with HIV may need these possible reasonable accommodations:
Employers may ask an individual with HIV to put a reasonable accommodation request in writing, notes the guidance. But employers can’t ignore an oral accommodation request, Fram cautioned.
For more accommodation ideas for individuals with HIV, visit the Job Accommodation Network.
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
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