This winter, the Equal Employment Opportunity Commission published two documents that relate to proper and legal treatment of employees who have HIV infection or AIDS. These documents are designed to provide guidance to both employees and their health care providers about HIV and AIDS in the workplace. They were issued pursuant to the White House’s National HIV/AIDS strategy, which calls for an end to discrimination and stigma associated with these conditions.
The first document was written for employees. It is called “Living with HIV Infection: Your Legal Rights in the Workplace under the ADA.” This document covers three topics: privacy rights, reasonable accommodation, and improper treatment.
The employee document first advises employees that they can usually keep their specific condition private. However, it describes four situations in which employers are legally allowed to ask medical questions:
- In affirmative action activities;
- In reasonable accommodation activities;
- After a conditional job offer is made; and
- When there is objective on-the-job evidence that an employee may not be able to do her job safely because of a medical condition.
The employee document also lets employees know that employers have a duty to reasonably accommodate those with HIV/AIDS, just as they do any other disability. A reasonable accommodation is a change to a job that is made by an employer to allow a disabled employee to continue to work safely and productively. A disabled employee may request a reasonable accommodation such as the following:
- Working from home;
- Flexible work schedules and additional breaks;
- Reassignment to a lower grade, vacant position for which the employee is qualified;
- Ergonomic furniture or aids, such as visual aids; and
- Unpaid time off.
It is important to note that an employer does not have to provide the specific accommodation requested, just one that is effective. Additionally, an employer is not required to offer an unduly burdensome accommodation to an employee.
The employee guidance document also outlines general antidiscrimination provisions of the ADA, which apply with equal force to those afflicted with HIV and AIDS. Employers are not allowed to discriminate against those who are disabled. They are not allowed to treat someone differently just because they are disabled. And they are not permitted to take actions against someone with HIV or AIDS simply because coworkers fear they will contract the virus.
Before an employer may take an adverse action against someone with AIDS or HIV, they “must have objective evidence” that the employee cannot perform her job duties or that she would pose a “significant safety risk, even with a reasonable accommodation.”
Employers are also not allowed to tolerate harassment of an employee suffering from AIDS or HIV. Rather, if they know about such harassment, they must take prompt, effective remedial action to put an end to it.
Our next blog will discuss the guidance the EEOC provided to health care providers on this same topic. Contact Labor Law Office, APC today to speak with an experienced discrimination attorney in Fresno.
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