[author: Melissa Burdorf, XpertHR Legal Editor]
Since 2010, the DOJ has taken unparalleled steps to enforce civil rights laws that protect the rights of persons living with HIV or AIDS. As World AIDS Day approaches (December 1, 2012), private employers with 15 or more employees should be aware that the Americans with Disabilities Act of 1990 (ADA) prohibits discrimination against individuals with disabilities, including those living with HIV or AIDS. In addition, some states and local municipalities have antidiscrimination laws that offer additional protections - such as a prohibition against mandatory testing for AIDS as part of a medical examination - or required confidentiality of all HIV test information.
The ADA also requires that state and local governments and places of public accommodations (i.e. doctor's offices, hospitals and healthcare providers) provide individuals with HIV and AIDS with equal access to goods, services, facilities, privileges, accommodations and advantages.
What Exactly is a Disability?
An individual is considered to have a disability under the ADA if he or she has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such impairment. Persons with HIV disease (symptomatic or asymptomatic) are considered to have physical impairments that substantially limit one or more major life activities and thus are protected by the ADA. Individuals associated with individuals living with HIV or AIDS and those regarded as having HIV or AIDS may also be protected under the ADA.
So, for example, it would be unlawful for an employer to:
Terminate an employee because the employee associates with (has a close familial, social or physical relationship) a person with AIDS;
Make employment decisions based on assumptions that an employee will miss work in order to care for a person with HIV;
Fire an employee with a hand wound that the employer mistakenly believes to be a condition of HIV infection; or
Fire an employee because of a rumor that he or she had AIDS, even if he or she did not.
Where Do the Government Agencies Fit In?
Both the EEOC and the Department of Justice (DOJ) have made it clear that it will go after employers that discriminate - especially against those with a disability.
To help better understand the relationship between the ADA and HIV/AIDS, the DOJ has created and revised a Questions and Answers: The Americans with Disabilities Act and Persons with HIV/AIDS publication. This Q & A document explains the rights of persons with HIV/AIDS and the obligations under the ADA for employers, businesses, and nonprofit agencies that serve the public, and state and local governments, to avoid discrimination against persons with HIV/AIDS.
The publication answers questions such as:
Are people living with HIV or AIDS protected by the ADA?
What employers are covered under the ADA?
What employment practices are covered by the ADA?
Can a public accommodation exclude a person with HIV or AIDS because that person allegedly poses a direct threat to the health and safety of others?
Are health care providers required to treat all persons with HIV or AIDS, regardless of whether the treatment being sought is within the provider's area of expertise?
What Can Employers Do?
In honor of World AIDS day, and in furtherance of the DOJ and the EEOC's position, employers should aim to combat any stigma and discrimination against people with HIV or AIDS in the workplace.
In furtherance of this goal, employers should:
Implement and strictly enforce a discrimination policy and a harassment policy that includes disability discrimination as one of many unacceptable forms of discrimination in the workplace;
Train all supervisors and managers on the requirements of the ADA - including what is and is not a disability, what to do if an employee asks for help or an accommodation and the employer's reporting procedures. All supervisors and managers should also know what to look for that may trigger the employer's obligation to sit down and talk to an employee about a possible disability and reasonable accommodations; and
Promptly and thoroughly investigate any claims of disability discrimination.
Additionally, employers can embed the ada.gov/AIDS badge on their website which will direct employees to the DOJ's site dedicated to fighting discrimination against people with HIV/AIDS.
How to Prevent Disability Discrimination Claims
How to Determine if an Employee Is Disabled
How to Prevent Discrimination in the Workplace
What Supervisors Need to Know About the ADA - Supervisor Briefing
Department of Justice - A.I.D.S
DOJ HIV/AIDS Litigation - Settlement Agreements and Consent Decrees
Office of National AIDS Policy - White House