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Learn Your Rights: Discrimination, HIV/AIDS, Addiction and Criminal Records

2013

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Job Discrimination

Legal Rights of People With HIV/AIDS and Alcohol or Drug Histories

May an employer deny you a job, fire you, or treat you differently because you have HIV/AIDS? An addiction history?

Usually no. If you are qualified for the job, it is illegal for employers to discriminate against you because you have HIV or AIDS, a past drug problem, or past or current alcohol problem, or because you are in treatment, including methadone. These are all considered "disabilities" under laws that make it illegal to discriminate against people with disabilities. But you are not protected by these laws if you are currently using drugs illegally.

But it is legal for your boss to fire you for not doing your job or for breaking workplace rules. For example, if your job says you have to call in for sick days and you do not do it, it is legal for your boss to fire you even if your HIV or alcoholism is the reason you were home sick.

Does an employer need to give you an "accommodation" if you have HIV/AIDS or an alcohol or drug history?

If you have a disability, you have the right to a "reasonable accommodation," such as a change in your work schedule, if you need it in order to do your job. The only reason your boss would not need to give you the accommodation is if it would be too costly or too much of a burden. But you usually need to ask for the accommodation, and you may need to provide written proof from your doctor.

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How do employers learn about your HIV status? What about your alcohol or drug history?

Employers often find out that you have HIV/AIDS or an alcohol or drug history through health questions on job applications and in interviews, medical exams or medical forms, drug tests, or drug or alcohol-related arrests or convictions.

What does an employer have the right to know?

It depends on when the employer asks.

Job Applicants. Before offering you a job, employers may not ask about your disabilities. These questions are illegal:

  • "Do you have HIV or AIDS?"
  • "Have you ever been in alcohol or drug treatment?"
  • "Have you ever been addicted to drugs or alcohol?"

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. They may also ask about current or past alcohol or illegal drug use. Examples of legal questions are:

  • "Have you ever used illegal drugs?"
  • "Do you drink alcohol?"
  • "Have you ever been convicted of driving under the influence?"

It is also legal for an employer to make you take a drug test. But it is illegal for an employer to ask questions about how much you drink or how much you used drugs because those questions might reveal an addiction.

After job offer -- before job starts. After making a job offer that is conditioned on passing a medical exam or filling out a medical form, it is legal for employers to require you to pass a medical exam as long as everyone offered the same position is required to take a medical exam. This means it is illegal for an employer to ask only you to take a medical exam and drug test just because the employer knows you are in recovery.

Current employees. Once you start work, your employer may only make you take a medical exam or ask for medical information if the employer reasonably believes you have a medical condition that could hurt your job performance or be a "direct threat" in the workplace.

Does your employer have to keep your medical information private?

Yes, if the employer gets the information from a required medical exam (either before or after you started the job) or a voluntary health program on the work site. Your employer must also keep the confidentiality of any HIV information that your health care providers give your employer with your written consent, and any alcohol or drug treatment information given by your treatment program, with your written consent. If you -- or your co-workers -- tell your employer about your disability in any other way, however, 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.

Is it legal for your doctor to tell your employer that you have HIV/AIDS?

Only if your doctor has your written consent to give them your information. New York law (Article 27-F of the Public Health Law) says that most health and social service providers must keep HIV information confidential. (For more information, see HIV/AIDS: Testing, Confidentiality and Discrimination:d What You Need to Know About New York Law, one of the books listed at the end.) But if your employer legally requires your medical information (see pages 3 and 4), and you do not sign a consent form to let your doctor disclose your HIV status, the employer may legally deny you the job. Have your doctor read medical forms carefully to make sure HIV information really is required.

Is it legal for your alcohol or drug treatment program to give information to your employer about your treatment?

Not without your written consent. Federal confidentiality laws require alcohol and drug treatment and prevention programs to get written consent before giving out information about their patients' alcohol or drug treatment. This is true even if your employer has required you to attend a treatment program. As mentioned above though, your employer may sometimes legally require written proof about your treatment. If you do not agree to the program's giving that information, you might be fired.

What can you do if an employer asks an illegal question or discriminates against you?

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!

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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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