Know Your Rights and Responsibilities As an HIV+ Employee

Know Your Rights and Responsibilities As an HIV+ Employee

Thanks to the excellent drugs we have today to control HIV infection, the vast majority of HIV-positive people are ready, willing and able to work. But what if their employer harbors prejudices against people with HIV? What if a restaurant owner, for example, is afraid that a person with HIV might pass it along to his customers? What if a factory owner doesn't want to hire a person with HIV for fear they might soon get too sick to work? What if an office manager just doesn't want someone with HIV around? All those things are discriminatory-and they are against the law. Working people with HIV are protected by the Americans with Disabilities Act (ADA), passed by Congress in 1990. The ADA affords similar protection against discrimination to Americans with disabilities as the Civil Rights Act of 1964, which made discrimination based on race, religion, sex or national origin illegal. Here's some information on the ADA, and how it protects your rights as an HIV-positive employee. Are people with HIV or AIDS protected by the ADA? Yes, absolutely. You may not feel that you are "disabled" by HIV in any way. However, you are considered to have a "disability" if you have a physical or mental impairment that substantially limits one or more major life activities. People with HIV, both symptomatic and asymptomatic, are protected by the law. You are also protected by the law if you are regarded as being HIV-positive. For example, a person fired on the basis of a rumor that he has AIDS-even if he does not-is protected by the law. Moreover, the ADA protects people who are discriminated against because they associate with someone who is HIV-positive. For example, the ADA protects an HIV-negative woman who is denied a job because her boyfriend is HIV-positive. Are all employers covered by the ADA? No. Some small businesses are exempt. The ADA prohibits discrimination by all private employers with 15 or more employees. In addition, the ADA prohibits all public entities, regardless of their size, from discriminating in employment against qualified individuals with disabilities. The ADA prohibits discrimination in all employment practices. This includes not only hiring and firing, but job application procedures (including the job interview), job assignment, training, and promotions. It also includes wages, benefits (including health insurance), leave, and all other employment-related activities. The "reasonable accommodation" clause. The ADA requires employers to make "reasonable accommodations" for people with disabilities. A "reasonable accommodation" is any modification or adjustment to a job, the job application process, or the work environment that enables a qualified applicant or employee with a disability to perform the essential functions of the job, participate in the application process, or enjoy the benefits and privileges of employment. Examples of "reasonable accommodations" include: making existing facilities readily accessible to and usable by employees with disabilities; restructuring a job; modifying work schedules; acquiring or modifying equipment; and reassigning a current employee to a vacant position for which the individual is qualified. For example, if you need two hours off, every other month, for visits to your HIV doctor, you might ask your employer for a "reasonable accommodation" by giving you longer lunch breaks on those days and allowing you to make up the time by working later. Does my boss always have to provide a needed reasonable accommodation? No. An employer is not required to make an accommodation if it would impose an undue hardship on the operation of the business. Determination as to whether a particular accommodation poses an undue hardship is made on a case-by-case basis. Customer or co-worker attitudes don't matter. The potential loss of customers or co-workers because an employee has HIV does not constitute an undue hardship. An employer is not required to provide an employee's first choice of accommodation. The employer is, however, required to provide an effective accommodation, if possible, that meets your needs. It is your responsibility to tell your employer that you need a reasonable accommodation. If you don't want to disclose that you have HIV, just say that you have an illness or disability covered by the ADA, that the illness or disability causes certain problems with work, and that you are requesting a reasonable accommodation. However, your employer can require medical documentation of the disability and the limitations resulting from that disability-so your HIV status may wind up being disclosed anyway. Can an employer consider health and safety when deciding whether to hire an applicant who has HIV? Yes, but only under very limited circumstances. The ADA permits employers to exclude individuals who pose a direct threat to the health or safety of themselves or of others, if that risk cannot be eliminated or reduced by reasonable accommodation. But employers can't simply assume that a threat exists-they must establish it through objective, medically supportable methods. Transmission of HIV is very rarely a legitimate "direct threat" issue. HIV can only be transmitted by sexual contact, exposure to infected blood or blood products, or from an infected mother to infant during pregnancy, birth, or breast-feeding. HIV cannot be transmitted by casual contact. So there is little possibility that HIV could ever be transmitted in the workplace. The fact that your employer may be ignorant of these facts is no excuse for them to discriminate against you. What if I believe I am being discriminated against because of my HIV status? The first step is to explain to your employer what the ADA requires. If the issue is not resolved satisfactorily, file a complaint with the nearest Equal Employment Opportunity Commission office. Your complaint must be filed within 180 days of when the discrimination occurred. The EEOC will investigate your complaint and either act to correct the problem or give you a "right to sue" letter. The right to sue letter permits you to sue your employer directly. You may be entitled to the job you were denied, back pay, benefits, or other compensatory and punitive damages. What about my responsibilities as an employee? If you accept a paycheck, it is your responsibility to do a good job for the company you work for. Just because you have HIV doesn't mean you can't be fired. You can! Your employer can't fire you because you are HIV-positive. But he can fire you for a thousand other reasons! Most employers in the United States hire their staff on an "at will" basis, which means they can let you go "at will." They can let you go because you come to work too late, because you're absent too often, because your work performance is poor, or just because you have a bad attitude. Even if your work performance is perfect, they can fire you because they are downsizing or they just don't need you any more. Even in the case of discrimination, most employers are too smart to blatantly fire you because they found out you are HIV-positive. They'll give another reason. It is up to you to prove the real reason they fired you, and to show that the reason they gave was just a pretext. So protect yourself by keeping copies of all your job evaluations and other work records. Proving a case of discrimination can be very difficult. The ideal situation is to do such a good job that your employer would never dream of letting you go for any reason. Every employee should try to make himself or herself indispensable. Superior performance is the best job security you can get! For more information on the ADA, check out the U.S. Department of Justice's comprehensive web site at www.ada.gov. Copyright 2011, Positive Health Publications, Inc. This magazine is intended to enhance your relationship with your doctor - not replace it! Medical treatments and products should always be discussed with a licensed physician who has experience treating HIV and AIDS!