On December 1, 2015, in conjunction with World AIDS Day, the EEOC issued two publications regarding the rights afforded by the ADA to job applicants and employees with HIV infection. Although specifically directed to applicants and employees who are HIV positive and to physicians who treat patients with HIV, the new guidance describes in great depth the basic considerations employers must take when evaluating issues that may involve ADA-protected rights.

The first, Living with HIV Infection: Your Legal Rights in the Workplace Under the ADA, reiterates that HIV infection is a disability under the ADA that protects applicants and employees from discrimination and harassment and obligates employers to provide reasonable accommodations to allow infected applicants to interview and, if hired, perform the essential functions of their jobs. While an employer may exclude an applicant or employee with a disability from a particular position if that person poses a direct threat to health or safety in the workplace, the EEOC emphasizes that such exclusions are not to be based on myths or stereotypes. For example, according to the EEOC, an HIV-positive phlebotomist who draws blood does not pose a direct threat to patient safety based on her HIV-positive status if she follows standard precautions.

This guidance makes clear that an employer’s ability to ask about whether an individual is HIV-positive is limited to a highly specific set of situations. (Note that an employer may not ask a job applicant about a disability until after a job offer has been made.) It also makes clear that applicants and employees can request job accommodations and suggests potential accommodations which may allow an employee who is HIV positive to perform the essential functions of the job (e.g., more frequent breaks to rest or use the restroom, modified work schedule or unpaid time off to accommodate medical appointments or recuperation, and permission to work from home.) Although employers can require documentation of the medical condition and need for an accommodation from a health care provider, the EEOC suggests that it may be sufficient if an individual provides documentation of an “immune disorder,” rather than HIV.

The guidance also addresses the “resume gap” question that can come up during the interview process. Employers are free to ask applicants about gaps in an applicant’s resume and can reject an applicant who refuses to provide an explanation or lies. However, if the applicant does reveal an HIV condition, the employer cannot discriminate against the applicant and must keep the information confidential.

The second publication, Helping Patients with HIV Infection Who Need Accommodations at Work, is specifically written for medical professionals who treat patients with HIV. It educates physicians about the basic requirements of the ADA, the types of accommodations to which their patients may be entitled, and what they can do to assist their patients in obtaining those accommodations. It also provides a very specific roadmap to physicians, describing the information they should provide to their patients’ employers and reminds physicians to use “plain language” and to explain certain things that will make it easier for the employer and employee to engage in the accommodation process. The documentation a physician submits to an employer should explain the following:

1. A brief statement of the physician’s professional qualifications and the nature and length of the relationship with the patient.
2. The nature of the patient’s condition. (The EEOC further suggests that physicians characterize their patients’ HIV infection as an “immune disorder” if the patient does not want to disclose his or her HIV status.)
3. The patient’s functional limitations in the absence of treatment.
4. The need for a reasonable accommodation.
5. Suggested accommodation(s).

Employers should be aware that applicants and employees have a right to privacy and, in most situations, need not reveal they are HIV-positive. If an employee requests an accommodation based on an immune disorder, employers should not unnecessarily inquire as to the specific diagnosis, but should instead focus on whether the condition substantially limits a major life activity. In evaluating whether an applicant or employee who is infected with HIV poses a direct threat to the health or safety of others in the workplace, employers should avoid basing their decision on the stereotypes and misinformation that are often associated with HIV.

Finally, do not forget that the ADA protects applicants and employees who are “regarded as” having a disability they do not have. Be careful not to assume a person who brings a diagnosis of an immune disorder is HIV-positive. As an employer, your focus is on whether you can reasonably accommodate the work restrictions.

By Destyn D. Stallings, dstallings@dsda.com