Frequently Asked Questions: HIV/AIDS Discrimination, Confidentiality, Employment and Disclosure
October 5, 2015
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Generally, yes. If you are qualified for the job, it is illegal for employers to deny you the job or treat you differently because you have HIV or AIDS. HIV and AIDS are considered "disabilities" under laws that make it illegal to discriminate against people with disabilities. This is true even for most health care jobs.
If you have a disability, you have the right to a "reasonable accommodation" in the workplace. This can include additional time off for medical reasons. It can also include a change in your work schedule or job duties if necessary for you to do your job. But your boss would not need to give you the accommodation if it would be too costly or too much of a burden. Note that you usually need to ask for the accommodation, and you may need to provide written proof from your doctor. That could include disclosing your HIV status.
Not before offering the job. Before a job offer, it is illegal to ask if you have any medical condition, including HIV of AIDS. Employers also may not ask your medications because that could reveal your HIV status. But it is legal for employers to ask whether you have a physical or mental condition that might make you unable to do the job. It is also legal for an employer to make you take a drug test.
I Just Got a Job Offer and Have to Go for a Medical Exam. What if the Doctor Asks if I Have HIV/AIDS?
After an employer makes a job offer that is conditioned on passing a medical exam or filling out a medical form, the employer may legally require you to pass a medical exam. But an employer may only do this if everyone offered the same position is required to take a medical exam. It is legal to ask about your HIV status and HIV medications during this medical exam.
It depends. Once you start work, an employer may require a medical exam or ask for medical information only if the exam or questions are "job-related and consistent with business necessity." This generally happens when an employee has work performance problems, and it is reasonable for the employer to believe a medical problem is contributing to the work problems.
We advise you to tell the truth, for a very practical reason. Your employer could easily learn your HIV status through a medical exam or a drug test. If the employer finds out you lied, it is legal for the employer to deny you the job for lying. It also is legal to fire you even if you have been a good employee. On the other hand, if you tell the truth and an employer rejects or fires you because you have HIV/AIDS, you can challenge this as illegal job discrimination.
It depends. If your employer gets the information from a required medical exam or from a voluntary health program on the work site, it must be kept confidential. Your employer also must keep the confidentiality of any HIV information it got with your written consent. But if you or your co-workers tell your employer about your HIV status in any other way, the employer may not need to keep the information confidential. For example, if you tell your boss you are upset because you just found out you have HIV, your boss would not have to keep that information confidential.
Only if you gave your doctor your written consent to disclose that information. New York law requires most health and social service providers to keep HIV information confidential. Even if the law allows your employer to require a medical examination, your doctor may not disclose that you have HIV or AIDS without your written consent. But beware: if you do not consent to the disclosure, and your employer is legally entitled to that information, the employer may legally deny you the job. Have your doctor read medical forms carefully to make sure HIV information really is required.
In New York, call the New York State Division of Human Rights at (888) 392-3644, New York City Commission on Human Rights at (212) 306-7450, U.S. Equal Employment Opportunity Commission at (800) 669-4000, or Legal Action Center at (212) 243-1313. There are deadlines, so call soon after the illegal act happens!
Visit Resources for more information on these issues.
If you need more legal help, please visit the HIV/AIDS "What We Do" section. Or if you live in New York State please call us at (212)243-1313.
This article was provided by Legal Action Center. Visit Legal Action Center's website to find out more about their activities, publications and services.
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