EEOC Issues Guidance on Rights of Applicants and Employees Infected with HIV

14 December 2015 Labor & Employment Law Perspectives Blog

In a recent press release announcing new guidance for applicants and employees infected with HIV, the Equal Employment Opportunity Commission (EEOC) noted that in 2014 alone, it resolved over 200 charges of discrimination based on HIV status, and recovered over $825,000 for job applicants and employees with HIV allegedly denied employment and reasonable accommodation as required under the Americans With Disabilities Act (ADA). The EEOC issued two publications on December 1, 2015, explaining the rights of individuals with HIV infection: That they be free from employment discrimination and harassment, and that they have reasonable accommodations at work.

The first publication, “Living with HIV Infection: Your Legal Rights in the Workplace Under the ADA,” explains to applicants and employees that they: (1) have workplace privacy rights; (2) are protected from discrimination and harassment because of their condition; and (3) may be entitled to reasonable accommodations. Regarding privacy rights, the EEOC explains the situations when employers are generally allowed to ask medical questions (e.g., when the employee asks for a reasonable accommodation), but states that employers must keep the information confidential, including from coworkers.

With respect to reasonable accommodations, the EEOC publication gives examples of accommodations, which may allow an employee with HIV infection to perform the essential functions of the job, such as more frequent breaks to rest or use the restroom, modified work schedule or unpaid time off to accommodate medical appointments or recuperation, and/or permission to work from home. The EEOC notes that “[b]ecause an employer does not have to excuse poor performance, even if it was caused by a medical condition or the side effects of medication, it may be better to ask for an accommodation before any problems occur or become worse.”

The EEOC publication advises that harassment is not allowed under the ADA, and that employers are not allowed to discriminate against an employee simply because the employee has HIV infection through actions such as termination, rejection for a job or promotion, or forcing an employee to leave. The EEOC emphasizes (with lots of underlining) that employers “cannot rely on myths or stereotypes about HIV infection when deciding what you can safely or effectively do. Before an employer can reject you based on your condition, it must have objective evidence that you are unable to perform your job duties, or that you would create a significant safety risk, even with a reasonable accommodation.”

The second publication, “Helping Patients with HIV Infection Who Need Accommodations at Work”, explains to doctors that patients with HIV infection may be entitled to reasonable accommodations at work. It also provides examples of possible reasonable accommodations, such as those stated above, and how doctors can assist patients in the accommodation process.

Employers should be aware that the EEOC has long considered HIV infection to be a disability protected by the ADA. Employers should go through the same analysis and interactive process as with any disability covered by the ADA or applicable state disability law to determine whether any reasonable accommodation can be made.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Insights