In 2010, the White House issued a National HIV/AIDS Strategy for the United States (NHAS). One step identified in the NHAS is to reduce stigma and discrimination against people living with HIV/AIDS. The Equal Employment Opportunity Commission (EEOC) has been utilizing its enforcement and litigation functions in recent years in an attempt to eradicate employment discrimination based on HIV status. In fiscal year 2014, the EEOC resolved almost 200 charges of discrimination based on HIV status and obtained more than $825,000 for job applicants and employees with HIV/AIDS who were unlawfully denied employment and reasonable accommodations. 
For example, in one recent case, the EEOC alleged that an employer withdrew a conditional employment offer after the applicant submitted a health status certification that revealed he is HIV-positive but also stated that he was cleared to work. In settling the case, the EEOC received $75,000 for the rejected applicant. In another case, the EEOC sued an employer for terminating an employee after he disclosed that he is HIV-positive. To settle the case, the employer agreed to pay the employee $125,000 and admit that his continued employment after he became HIV-positive was not a health threat.
As those cases make clear, failing to accommodate or discriminating against an employee or a job applicant with HIV/AIDS can be extremely costly for employers. Thus, it’s important to understand how to best accommodate employees and potential employees who have HIV/AIDS.
Advice for workers, healthcare providers
In addition to its increased enforcement and litigation proceedings, at the end of 2015, the EEOC issued two publications addressing workplace rights for individuals with HIV/AIDS. The first “Helping Patients with HIV Infection Who Need Accommodations at Work” is intended to educate healthcare professionals on how to assist HIV/AIDS patients with requesting and receiving reasonable accommodations at work. The second “Living with HIV Infection: Your Legal Rights in the Workplace Under the ADA” ‚aims to educate individuals with HIV/AIDS on their rights under the Americans with Disabilities Act (ADA).
Both resources can be found on the EEOC’s website at ww.eeoc.gov. The guides can also help employers understand how employees and job applicants may request accommodations and detail the different accommodations employees with HIV/AIDS may require.
First and foremost, the EEOC guidance articulates the fact that HIV/AIDS is a disability under the ADA. The guidance also informs employees that they do not need to disclose their specific diagnosis when they request an accommodation. Simply telling their employer that they have an “immune disorder” is enough.
Because HIV/AIDS is a disability under the ADA, an employer must provide reasonable accommodations if an HIV-positive employee or applicant needs them, as long as the accommodations don’t result in undue hardship for the employer. Both guides list potential reasonable accommodations that individuals with HIV/AIDS may request, including altered break and work schedules, changes in supervisory methods, accommodations for visual impairments, ergonomic office furniture, unpaid leave, and permission to work from home. In addition, if an employee becomes unable to perform his current position because of the progression of the disease, his employer may be required under the ADA to reassign him to a vacant position that he is able to perform.
The list of accommodations in the guidance is not exhaustive. Employees may request different or additional accommodations, and employers are also free to suggest different accommodations. If multiple accommodations would work, the employer is given the choice of which accommodation to provide. However, if an employer justifiably believes that no matter what accommodations are made, the employee still poses a “direct threat” to others, it may exclude him from the workplace.
A direct threat, according to the Code of Federal Regulations, is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Any determination that an employee poses a direct threat must be made based on an individualized assessment, taking into consideration current medical knowledge, the employee’s job duties, the severity of the potential harm, and the likelihood that harm will occur, among other things.
Be aware of current focus
Employers should be aware of the EEOC’s current focus on HIV/AIDS discrimination in employment. The agency’s new guidance provides ideas on how best to accommodate employees with HIV/AIDS as well as information about the medical questions you can and cannot legally ask employees and their doctors. If you have concerns about making appropriate accommodations or any other questions about employees with HIV/AIDS, contact legal counsel.
Natalie B. Virden is a Phoenix attorney who practices in the areas of labor and employment law.