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Forced Leave of Absence due to HIV, no risk of exposure for anyone!!
Dec 15, 2013

Recently at work, I was forced to work 22 straight weeks of 70-75 hours a week (salaried manager). I was getting burned out and my depression worsened. I had sent an email to HR to begin the process of taking some STD time off. I notified my manager of my email to HR. When my manager inquired why, I told her I need time to get treatment for my HIV and to further my depression care. Within 90 minutes, I was on a conferece call with my manager and the VP of HR. I was told that I was a threat to the residents (where I work) AND the employees and my LOA was to begin immediately. I did not give my manager permission to share that info.

I ended up homeless as I am still waiting (11 weeks later) for MetLIfe to pay STD payments. Did my manager violate a HIPPA law or any other disclosure law? Can I seek legal retribution??

Thanks, Homeless and confused

Response from Ms. Douaihy

Dear writer,

Thank you for the question.

You do not say what kind of work you do -- this factors into my answer.

Are you a health care worker (doctor, nurse, et cetera?). If so, and if you perform invasive or "exposure-prone" procedures on patients, your employer may reasonably modify your employment if circumstances so warrant. However there are very specific guidelines set out by the American Medical Association to prevent discrimination against health care workers with HIV/AIDS. See, "Guidance for HIV-Infected Physicians and other Health Care Workers", 2011. (H-20.912).

In pertinent part the guidelines say: "An HIV- infected physician or other health care worker should refrain from conducting exposure-prone procedures or perform such procedures without permission from the local review committee and the informed consent of the patient."

So the answer to your question really turns on the nature of your work, i.e. whether you perform "exposure prone" procedures. There is no bright line rule on what qualifies as "exposure prone" or under what circumstances an employee constitutes a "direct threat" -- these inquiries are very fact specific.

If you are NOT a health care worker that does "exposure prone" procedures, or you do NOT engage in activities that pose a "direct threat", then it sounds like your employer may have acted unlawfully. Based on your story, if you are not a health care professional that carries out "exposure prone" procedures, you may have a claim of employment discrimination because of your disability (HIV status qualifies in this context).

You may have a credible federal claim of employment discrimination based on disability (HIV+) if 1) you can amply demonstrate the causal nexus between your employer's adverse action (putting you on leave and calling you a "threat") and its knowledge of your HIV status, 2) your former employer has the requisite number of employees and 3) you are filing within the statutory period. You may also meet threshold criteria for relief under state anti-discrimination law if such exists where you live.

Treating a disabled employee differently, terminating them summarily or creating a hostile work environment solely because of the fact of their disability is generally considered unlawful under federal law and state law.

If an employee discloses his status and is treated unfairly as a response, he generally has remedies under state and/or local anti-discrimination law. The federal Americans with Disabilities Act is applicable where an employer has 15 or more employees. The Equal Employment Opportunity Commission ("EEOC") is also a good first step as the EEOC enforces federal anti-discrimination laws. Also check out the official websites for your city, county and state to learn what kinds of anti-discrimination protections exist in your home town in the event that your former employer is not covered by the ADA.

Depending on the circumstances, you may also have a claim for breach of privacy law (HIPAA). I think you should contact an attorney right away and contact the EEOC as soon as possible to discuss the merits of your case.

I wish you all the best.


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