Many in the HIV advocacy community would agree that the persistent stigma attached to HIV is, in and of itself, a public health issue. Fear of being stigmatized or being subjected to discrimination can be a powerful force in dissuading people from seeking testing and starting and remaining in treatment. This fear of stigma, rejection, and disclosure leads some to remain under or unemployed. This is particularly true of those who have been unemployed for a long period of time due to their HIV or another disability. The prospect of having to explain a long disability-related gap in employment either on a resume or in an interview can increase the stress of an already daunting return to work process. In addition, some employees with HIV will remain underemployed or fail to request a needed accommodation or change in their work environment because they fear the consequences of what they believe will be required in disclosure of their HIV status in the workplace. At a time when so many people with HIV can and desire to re-attach or remain attached to the workforce and when simple accommodations can allow individuals with HIV to continue to thrive and succeed in the workplace alongside their HIV-negative peers, a fundamental understanding of the rights and responsibilities of those with HIV and their employers is more important than ever.
On December 1, 2015, the Equal Employment Opportunity Commission (EEOC or the Commission) published two important and enormously helpful documents related to individuals with HIV in the workplace. The first, Living with HIV Infection: Your Legal Rights in the Workplace under the ADA, outlines in straightforward non-legalise language, the basic rules of the road with respect to how the medical condition of HIV is treated under the Americans with Disabilities Act (ADA), the primary federal law designed to protect people with HIV and other disabilities in the workplace. The guidance makes clear that an employer’s ability to inquire about any medical condition of an applicant or employee is extremely limited to a highly specific set of circumstances. It also makes clear that people with HIV can make requests for accommodations at their job, and, although employers can ask for documentation of their medical condition and the need for the requested accommodation, it may be sufficient to submit documentation that the employee has an “immune disorder” rather than the more specific HIV. Finally, it addresses the “resume gap” question by clarifying that a prospective employer can legally ask every applicant to explain a gap in employment and reminds applicants that they cannot be discriminated against for having a disability or a history of a disability and any information the employer gains during the interview related to the applicant’s disability must be keep confidential. Finally, it reminds us that workplace harassment on the basis of HIV or other disability is also illegal.
The second guidance, Helping Patients with HIV Infection Who Need Accommodations at Work, is just the kind of practical advice needed both by workers and by their health care providers. Even under the best health insurance plans, the amount of time we are allowed to spend with our doctors is limited, often rushed, and impersonal or worse, lacking in cultural competence. That, in combination with a doctor’s natural aversion to becoming involved in anything that looks remotely like it might involve lawyers, can make asking your medical provider for documentation to support your accommodation request at work more than intimidating. One of the many strengths of the Commission is its ability to produce documents like this one that really serve as a step by step guide that both answers the most likely questions a doctor will have about his or her role in the reasonable accommodation process and sets out the exact information that should be contained in the medical documentation so that it will properly support the request for accommodation. Hopefully, this document will see wide distribution, including among medical care providers and social service agencies that serve the community of those with the medical condition of HIV.