Questioners frequently write in to prepare for classroom assignments on whether an HIV positive person should have to disclose his/her HIV status to an employer. I would love to chat with the instructors who assign this question/debate topic/research paper topic, inviting them to cease assigning it. Often it seems that the instructor is treating this question as a matter of opinion on which good people could easily disagree, ignoring civil rights, the right to privacy and other existing law. There are clear guidelines and boundaries that a careful employer will not cross, and a careful employee will guard. Most of the lawsuits generated by AIDS, the most litigated disease in American history, have been caused by unauthorized disclosure. Employers and employees have clear rights and responsibilities when an employee has HIV. This is not an opinion question! It is a matter of the rights of people with disabilities, as described in the Americans with Disabilities Act and elsewhere in privacy law.
That said, let's do a quick summary of your options as the hapless student who gets stuck with this turkey of a topic. First, race to www.workpositive.com, go to stuff we've written -- articles, and you will find an excerpt from "What About MY Rights? Guidelines for Employers and Employees Living With HIV/AIDS." It's a booklet of about 25 pages that details the rights and responsibilities I just mentioned. Six attorneys, including a senior attorney advisor on the Americans with Disabilities Act for the Equal Employment Opportunity Commission, reviewed and signed off on the booklet. I know that because I wrote it, and had the privilege of watching all six of them go through it with a fine tooth comb. Order it (for a nominal fee -- we don't make a profit). While you're at our website, you'll find other information helpful to you in your assignment.
Briefly, a job applicant or employee who lives with HIV normally does not have to disclose the diagnosis to the employer. People who live with HIV, especially if they have received disability income or a Social Security determination of disability, live in a weird culture where they are encouraged in lots of situations to disclose. "Disclose to sexual partners. Disclose to needle-sharing partners. Disclose everything you're taking to your health care provider." Tell, tell, tell. It's no wonder they head for work thinking they have to tell someone.
But they don't. Unless they work at a job where HIV infection poses a direct threat to the health of others, such as the job of a surgeon, they may maintain their confidentiality. (On the subject of surgeons: a surgeon's duty to disclose is not a matter of state or federal law. Local hospital boards decide such rules, and almost always require periodic HIV and hepatitis B tests of their employees involved in invasive procedures. People who do those procedures who test positive often are required by the hospital board to move to a position where they no longer perform invasive procedures. And that is not every health care worker, by a long shot.) No, your HIV-positive vet, food handler, hairdresser, manicurist, barber, chiropractor, chef and bank teller do not pose a direct threat to anyone else's health in the workplace. After twenty years, can we put those fears to rest?
When does your general non-surgeon employee have to disclose his or her HIV status to the employer? Never. Disclosure is a choice, and should be made very carefully. That's a whole other topic. Where does this get tricky? Here are the places, described using the language of the Americans with Disabilities Act. Warning: I am not an attorney, but I do spend a lot of time consulting with them, and they do not argue with these points:
To enjoy the protections of the Americans with Disabilities Act, an employee does have to identify him/herself to the employer as a person living with a disability. Generally, if the employee is fulfilling the essential functions of the job, there is no reason to self-identify. Self-identifying becomes important at the point where the employee needs reasonable accommodation to be able to continue fulfilling the essential functions of the job.
Self-identification as a person with a disability, however, does not mean telling your employer what your diagnosis is. It means telling your employer what your functional limitations are. Example: you do not request reasonable accommodation because you have HIV-related diarrhea. You request reasonable accommodation because your disability limits your ability to stay at your workstation without more frequent bathroom breaks. See the difference? In part, it's called maintaining your dignity, your privacy.
Ideally, your request for reasonable accommodation comes in the form of a note from your health care provider, listing your functional limitations and the suggested accommodation(s). That note should not contain the diagnosis. If it does, give it back to the health care provider and ask them to rewrite it referring only to functional limitations, not to the diagnosis. They may grumble. They'll get over it. This is your confidentiality we're talking about!
The employee can negotiate reasonable accommodation with the human resources professional, apply for short term and long-term disability and move through typical employment events without disclosing the diagnosis. Whether any particular employee chooses to disclose is a personal decision; I wouldn't dream of telling someone to disclose. But should an entire class of people be held up to pointless debate about their rights to privacy in classrooms all over America, the country where those privacy rights are supposedly guaranteed? No. Should the very teachers who assign this topic be required to give regular presentations about the contents of their most recent medical appointments to the rest of the faculty or the administration? Stupid assignment.