With the ever-widening availability of COVID vaccination, the U.S. has slowly started to emerge from the worst of this pandemic. A decreasing number of daily deaths and progression toward “herd immunity” should signal a return to work for many who were without a job as a result of the pandemic. Welcome news undoubtedly—and a good time to talk about HIV discrimination in the workplace.
For many years, people living with HIV have called Lambda Legal’s Help Desk more about employment discrimination than any other subject. With that in mind, here are some helpful things to know about HIV and the workplace.
First—and most important—employment discrimination based on HIV status is illegal under federal law. The Americans with Disabilities Act (ADA)—alongside another statute called the Rehabilitation Act, which applies to employers who receive federal funding—protects everyone in the U.S. from HIV discrimination in employment, regardless of the state in which the person works. There may also be state laws that protect against employment discrimination based on HIV status, but they are in addition to the protections provided under federal law.
Even though the ADA has the word “disabilities” in its name, its protections apply to all people living with HIV. It doesn’t matter whether a person is considered disabled for purposes of social security or state disability benefits. The definition of “disability” under such benefits statutes is different from the definition used under the ADA. Under the ADA, everyone living with HIV falls within the protections of the law, regardless of their viral load, T cell count or other measure of immune health or physical abilities.
Second, there is not a job in the world that a person living with HIV cannot safely perform. The primary routes of HIV transmission—sexual contact, sharing injection drug paraphernalia, and perinatal activities (e.g., giving birth, breastfeeding)—are not things that most people do as part of their job. And for those who do engage in an activity at their job that may present some level of transmission risk, such as a sex worker or a doctor performing surgery, those risks can be nearly eliminated by the proper use of universal precautions. The ADA prohibits employment discrimination unless doing the job presents a significant risk to the health or safety of others—and HIV never presents that degree of risk in the workplace.
Third, a person living with HIV (or any other covered disability under the ADA) can ask for a reasonable accommodation if their HIV is interfering with their ability to do the job. In general, to secure the protections of the ADA, a person has to be able to perform the essential duties of the job despite their disability. But there is an important caveat to that requirement: if providing the person with a reasonable accommodation—such as a schedule modification due to medication side effects or time off for medical appointments—would allow the person to perform the essential functions of the job, the employer must provide that accommodation.
What is considered “reasonable” is determined on a case-by-case basis and will generally need to be supported by a letter from a doctor explaining why the accommodation is required under the circumstances. The medical professional need not identify the precise condition at issue in the initial letter—just that there is a medical condition requiring the accommodation. If the employer pushes back, the employee may have to decide whether they want to reveal the precise nature of the disability creating the need for an accommodation—in this case, HIV—but there is no need to reveal this information out of the gate.
Fourth, an employer cannot ask an applicant questions that may reveal a disability—or send an applicant for a physical or medical exam—until the employer has made an offer of employment conditioned solely on the answers to those questions or the result of the exam. The purpose of this rule under the ADA is to make it very clear when the employer’s decision not to hire is based on the answers to those questions or the results of the medical exam. That way, after learning about the person’s HIV status (or other disability), the employer can’t claim that they didn’t hire the person for some other reason, such as failure to pass a background check.
Even if you think your HIV status is irrelevant to your ability to perform the job—and…in most instances it will be—you are better off answering truthfully or not at all.
What do you do if they ask questions that will reveal your HIV status or send you for a medical exam before making you a conditional offer of employment? That is a great question, to which there is no easy answer. If an applicant points out that such an inquiry or exam is illegal under the ADA or refuses to answer or participate in the exam, there is a pretty good chance the person won’t get a job offer at all. And suing to enforce this specific provision of the ADA is not particularly realistic. On the other hand, answering the questions or participating in the exam may lead to the very type of discrimination that the ADA prohibits. That would require a lawsuit as well, but such a lawsuit has a better chance of succeeding.
Whatever you do, don’t lie. Refusing to answer a question or to complete parts of the pre-exam medical form is fine, but lying about your HIV status could make it more difficult to succeed in court. Even if you think your HIV status is irrelevant to your ability to perform the job—and, as discussed above, in most instances it will be—you are better off answering truthfully or not at all. If the employer can show that you lied about this one thing, they can paint you as a liar with respect to other things you are claiming in your lawsuit.
In this day and age, most employers are not going to ask such inappropriate questions, so you shouldn’t have to worry unless you are applying for a very few particular jobs. Your HIV status is pretty much irrelevant to your ability to do any job—even the job of military service member (more on that in a future column)—so happy job-hunting!
Scott Schoettes is an attorney and advocate who lives openly with HIV. He engages in impact litigation, public policy work, and education to protect, enhance, and advance the rights of everyone living with HIV.