On December 1, 2015 (World AIDS day) the U.S. Equal Employment Opportunity Commission (EEOC) issued the following two separate fact sheets addressing the Americans with Disabilities Act (ADA) protections for individuals with HIV. Healthcare providers should pay careful attention to these documents to understand their duties under the ADA and the medical documentation that may be required from them.
FACT SHEET— Living with HIV Infection: Your Legal Rights in the Workplace Under the ADA
The ADA applies to public employers and private employers with 15 or more employees. The law provides protection to employees with disabilities by prohibiting discrimination and retaliation. Disability is defined as: (1) a person with a physical or mental impairment that substantially limits one or more major life activities; (2) an individual that has a record of such an impairment; or (3) an individual that is regarded as having such an impairment. As such, the EEOC recognizes HIV as a disability protected under the ADA.
Employees with a medical condition, including HIV/AIDS, have the right to keep their medical condition confidential. The EEOC explains that employers are only allowed to ask about an employee’s medical condition in the following limited situations:
- When the employer is engaging in affirmative action for people with disabilities, in which case the employee may choose whether to respond;
- When an employee requests a reasonable accommodation. But, the EEOC publication explains that an employee may explain their disability in general terms to avoid giving a specific diagnosis, such as stating that he/she has an “immune disorder;”
- After the employer has made a job offer, but before employment begins, as long as all other employees entering the same job category are asked the same questions;
- On the job, when there isobjective evidence that the employee is unable to do his/her job or that he/she may pose a safety risk because of the employee’s medical condition. Employers cannot rely on myths or stereotypes about an employee’s condition to conclude that the employee is unable to do his/her job or pose a safety risk; and
- When obtaining medical leave under the Family Medical Leave Act.
An employer that becomes aware of an employee’s HIV condition is prohibited from discriminating or harassing an employee, which includes demotion, termination, or taking any other adverse employment action. The employer also has a duty to keep the employee’s medical condition confidential.
In the event an employee’s HIV condition affects his/her job performance, they may be entitled to a reasonable accommodation under the ADA if it will allow them to perform the essential functions of their job. Although not an exhaustive list by any means, the EEOC explains that such reasonable accommodations can be in the form of altered break and work schedules, changes in supervisory methods, accommodations for visual impairments, ergonomic office furniture, unpaid time off, ability to work remotely, and reassignment to a vacant position. Reasonable accommodations must be made on a case-by-case basis, determined by the specific medical condition and the employee’s job duties. However, an employee’s disability does not excuse poor job performance. And reasonable accommodations do not include lower performance or production standards, elimination of fundamental job duties, or require pay for work that is not performed.
In requesting accommodations, the employee must follow the employer’s policies, which may include supporting documentation from the employee’s treating healthcare provider. To read this fact sheet in its entirety, click here.
FACT SHEET— Helping Patients with HIV Infection Who Need Accommodations at Work
This document is directed to healthcare providers that treat individuals with HIV and explains how they can assist their patients in requesting workplace accommodations for their disability. It provides a succinct overview of the ADA, including the reasonable accommodation process. It specifically addresses reasonable accommodations for HIV patients, explaining that accommodations can be based on the HIV condition, but also on the side effects of HIV medication, or another medical condition that developed because of the HIV.
Employers may require their employees to obtain medical documentation from their healthcare provider to substantiate the disability and reasonable accommodation. Thus, healthcare providers may be asked by the patient to document his/her medical condition, the functional limitations of the condition, and/or explain how a workplace accommodation would help the patient perform his/her job. If a patient requests their medical diagnosis to be kept confidential, the EEOC advises healthcare providers to state the patient’s general type of disorder when preparing such documentation.
A narrow exception to the ADA protections allows an employer to terminate or demote an employee if he/she poses a direct threat to the health and safety of the individual or to others that cannot be eliminated or reduced with a reasonable accommodation. An employer may inquire of the treating healthcare provider in order to determine if such a direct threat exists. In providing such an opinion, the EEOC advises healthcare providers to “estimate the probability of harm occurring under the patient’s actual day-to-day working conditions and current treatment regimen, based on current medical research to the extent possible.” Healthcare providers are also advised to state whether any safety precautions exist that would reduce the risk of harm.
Of course, in providing medical information on a patient that is seeking workplace accommodations, the healthcare provider must also comply with HIPAA laws. Therefore, the healthcare provider cannot disclose any medical information to an employer without the patient’s consent.
Lastly, the document provides guidance on how to answer employer inquiries related to a patient’s medical condition. To read this fact sheet in its entirety, click here.