The Law And The Workplace
The Rights of HIV-Positive Employees
Ten years ago, people with HIV/AIDS seldom thought about long-range career goals. HIV-positive employees felt stuck in their jobs, and planning for the future meant making sure they had long-term disability policies in place. But today, people with HIV are living longer, healthier lives, and it is important that they know their rights and responsibilities in the workplace.
The federal Americans with Disabilities Act, known as the ADA, and state and local laws in New York, protect people with disabilities from discrimination in employment, healthcare, and public accommodations such as restaurants and movie theaters. The United States Supreme Court recently ruled that people with asymptomatic HIV infection are protected under the ADA; New York's Human Rights Law similarly protects people with HIV whether they have symptoms or not. These laws also require employers to take certain steps to accommodate employees with disabilities.
But how do these laws play out in the real world? How can an HIV positive employee guard against discrimination in the workplace? And since most employees want to work in a satisfying environment, not to engage in litigation or other adversarial posturings with their employers, what steps can an HIV-positive employee take to ensure that an employer meets its responsibilities?
Don't Ask, Don't Tell: Confidentiality And Disclosure
Usually, disclosing HIV status is talked about in the context of disclosure to friends, family, and lovers. The discussion encompasses moral concerns, such as disclosure to a prospective sexual partner, and such practical concerns as reaching out for emotional support. Disclosure in the workplace, however, raises a completely different set of issues.
Unless your HIV status affects your present ability to perform your job, you are under no legal obligation to disclose your status to your employer. Because HIV cannot be transmitted through casual workplace contact, unless you are in a profession where it is likely that someone might be exposed to your blood (e.g., you are a surgeon or an emergency room nurse), disclosure of your HIV status in the workplace involves no moral issues. And because the law does not require our employers to respond to us with compassion or sympathy, disclosures in the workplace intended to engender such responses more often instead prove disappointing.
Carmen applied for a job as a receptionist for a mid-size accounting firm two years ago. When she was called in for an interview, she was nervous. She knew she was well qualified, but she didn't know how to respond if they asked her about her health. Since testing HIV-positive several years earlier, she had remained in a job she didn't like because she was scared about having to disclose her status to a new employer.
Then Carmen went to an employment rights seminar at her local HIV/AIDS organization. She learned that she did not have to disclose her HIV status to her prospective employer and that the interviewer could not ask questions about her HIV status or the general state of her health. Any medical questions asked in a pre-employment inquiry had to be directly related to her ability to perform the job for which she was applying. Carmen had been asymptomatic since recovering from a bout of PCP a year or so before, so she knew she could honestly say that she was able to perform the job as the firm's receptionist.
When Carmen arrived for her interview, she was asked to complete an employment application. And just as she had both feared and expected, there was one question about her health: "Are you taking any medications?" Carmen knew that the only question about medication that her prospective employer could legally ask was whether she was taking any medication that would affect her ability to do her job. In Carmen's case, the answer to that question was "no"; although she followed a three-drug antiviral regimen and took a PCP prophylaxis, she wasn't experiencing any side effects that interfered with her ability to perform her job. The accounting firm had taken a shortcut with this question and asked only if she was taking any medication. Carmen knew that she should just assume the legally proper question had been asked, and to answer that question truthfully: "No."
After the medical inquiry, the rest of the interview was a breeze. Carmen was offered the job and gladly accepted it. She has now been at the job for two years, and enjoys a good relationship with her supervisor and the other receptionists. Sometimes, though, she feels guilty about not telling her supervisor her HIV status. What if she gets sick and needs to take time off? Will they be angry that she never told them her status?
Legally, Carmen need not disclose her status to her employer at this time. But many people with HIV consider disclosing their status to their employers even though they are under no legal obligation to do so.
If you're contemplating disclosing your status in the workplace, an important consideration is confidentiality. New York's HIV confidentiality law does not govern workplace disclosures. This law prohibits healthcare providers, like your doctor and the lab that performs your blood work, and social services providers, like Body Positive and your therapist, from disclosing any HIV-related information about you without your written consent. But New York's HIV confidentiality law does not require anyone at work to maintain your confidentiality if you disclose your status in the workplace.
The ADA protects the confidentiality of an employee's medical information but does not specifically address the confidentiality of orally and voluntarily disclosed medical information. The courts will ultimately have to decide whether the ADA's confidentiality provisions protect the confidentiality of all medical disclosures in the workplace, or just those enumerated in the language of the law itself. Do you want to be the test case?
Disclosure in the workplace is a very personal, and usually a very optional, decision. But there are two situations in which an HIV-positive employee might be required to disclose something about his or her status to an employer: when an employee needs to take a short- or long-term medical leave, and when an employee needs a "reasonable accommodation" at work.
Have It Your Way?: Reasonable Accommodation
Both the ADA and the New York Human Rights Law require that employers make "reasonable accommodations" for employees with disabilities who are otherwise able to do their jobs. A reasonable accommodation could be a modification or adjustment to work duties, schedule, or environment, or to the initial application process, that would enable the employee to perform the essential job duties without imposing an "undue hardship on the operation of the business."
Legally, an employer can request medical documentation that an employee is eligible to receive the protections afforded under the ADA or the New York Human Rights Law. Thus requesting a reasonable accommodation might entail disclosing that you are HIV-positive.
The relevant laws do not set forth a particular method of requesting a reasonable accommodation, but the burden is on the employee to make the request. And although an employer is not required to make every accommodation proposed, an employer is legally obligated to work with an employee to arrive at an accommodation that will meet both the employee's medical needs and the employer's work needs.
The determination of whether an accommodation is reasonable is made on a case-by-case basis and depends upon the employee's specific medical needs and job duties. For example, if a computer programmer is experiencing debilitating neuropathy, it may be reasonable for the employer to permit her or him to work from home via modem. On the other hand, if the person with neuropathy is a social worker whose job requires meeting with several clients a day and facilitating on-site group sessions, working from home is not an option.
Carmen's firm, like so many others, is experiencing financial difficulties. One of the receptionists loses her job as a result of downsizing. Carmen's supervisor, Angela, decides that the remaining receptionists will stagger their hours between 8:00 a.m and 7:00 p.m. to cover the work of the lost receptionist. Carmen has always worked from 10:00 a.m. to 6:00 p.m., has taken lunch at 1:00 p.m., and has never had to put in extra hours. As a result of the new schedule, Carmen will now have to report to work at 8:00 a.m. on Tuesdays and Thursdays with a noon lunch break, and may have to work until 7:00 p.m. on the days she begins at 10:00 a.m.
Because Carmen is fearful for her own job, she silently accepts her new schedule. But with fewer receptionists, she soon finds that when one of the remaining receptionists is out sick or on vacation, she is expected to work through lunch and sometimes longer hours. Missing lunch interferes with Carmen's antiviral regimen. In addition, on the mornings she begins work at 8 a.m., she is often late because her protease inhibitor gives her diarrhea, and she can't leave home until she knows she can make it half an hour without needing the bathroom. Angela has started to complain about Carmen's tardiness, and Carmen is worried that she will get fired.
After three months of trying to adjust to her new work schedule, Carmen finally decides to seek a reasonable accommodation. She asks her doctor to write a letter telling her employer that her medication regimen requires that she eat lunch at the same time each day, and that her morning health maintenance routine makes it extremely difficult for her to arrive at work before 9:00 a.m.
She also asks her doctor to disclose her HIV status in the letter, because she knows that written medical documentation must be kept in a confidential personnel file and the information must remain confidential. Finally, Carmen asks her doctor to certify that Carmen is perfectly capable of working as a receptionist full time, but just requires a more regular schedule.
Carmen brings her doctor's letter, along with her own short letter specifically requesting a reasonable accommodation, to Jack, the Director of Human Resources. Carmen is nervous about her meeting with Jack, and worries that he will be angry that she did not disclose her status, and her medication regimen, when she first applied for the job two years ago. But she also worries that if she doesn't get an accommodation, she will lose her job and jeopardize her health.
Fortunately, Jack responds to Carmen's request favorably. He tells Carmen that he will talk to Angela to see how the receptionist scheduling can be changed to make the accommodation she needs. Carmen tells Jack that she really doesn't want Angela to know about her HIV status. Jack assures her that he won't disclose any specific medical information to Angela, but explains that as her direct supervisor, Angela will have to know that her schedule needs to be changed. Jack asks her to give him a week or two to permanently revise the schedule with Angela, but tells Carmen that until that time he will make sure someone can cover for her so that she can eat lunch at 1:00 p.m. every day.
The Firing Line: Discrimination
Federal, state, and local laws protect HIV-positive New Yorkers from discrimination by employers, healthcare providers, and public accommodations. No law says that an HIV-positive person cannot be fired, or that a doctor cannot refuse to treat an HIV-positive patient. Existing laws merely prohibit an employer from denying a job or a healthcare provider from refusing treatment because a person is infected with HIV. The law places the burden on the HIV-positive person to prove discriminatory intent.
In New York, unless you are a union member or are working pursuant to a contract of employment, you are an "employee at will." This means that an employer can fire you with or without notice, and for any reason so long as it is not an illegal reason. An HIV-positive employee can be fired for "legitimate business reasons" including, but not limited to, poor performance, excessive absenteeism, or downsizing. So if Carmen had been slated for a layoff during her company's downsizing, disclosing her HIV status would not have saved her job.
At this point in the HIV epidemic, most employers in New York do not fire or demote employees immediately upon discovering their HIV-positive status. Discrimination is often much more subtle, and therefore more difficult to prove. And once an employer has offered a non-discriminatory reason for the termination or other adverse employment action, the law puts the burden on the employee to prove that the "legitimate business reason" offered by the employer is a "pretext," and that the real reason for the adverse action was his or her HIV status.
Richard works as an administrative assistant in the payroll office of a large company. Richard's performance has always been exemplary, and Brenda, his supervisor, has been discussing with Richard her interest in promoting him to Payroll Associate. He anticipates that he will receive the promotion after his next performance review, scheduled for October.
Over the summer, Richard is diagnosed with PCP and remains hospitalized for ten days. When Richard gets home from the hospital, he calls Brenda and tells her that he has AIDS and will be missing a few weeks of work, on doctor's orders. Because Richard will miss almost seven weeks of work, he has to go on short-term disability. His doctor indicates his AIDS diagnosis on the disability application, which is then forwarded to the personnel office of Richard's company.
During his convalescence, Richard keeps in touch with Annie, a recently hired administrative assistant with whom he has become very friendly. Since Annie is handling many of Richard's job duties while he is out, she sometimes calls him to ask questions about work. During one of their phone conversations, Annie tells Richard that Brenda has told her that she doesn't want to "put any more effort" into training Richard because "he's going to die soon anyway."
When Richard returns to work after Labor Day, he finds his desk pushed into a corner of the office near all of the file cabinets. His coworkers' desks remain in their usual places, in the center of the office. Richard reports to Brenda's office, and asks why his desk has been moved. Brenda closes her door and tells Richard that because he is destined to get sick again, she will no longer be able to rely on him to do time-sensitive work. In fact, she has given some of his job duties to Annie and expects Richard to train Annie in all aspects of his job.
The next month is a nightmare for Richard. Everyone who comes through the door of his busy office asks why he is sitting apart from everyone else. Because Brenda has stripped him of his job duties, he often sits around with nothing to do. He has complained to Brenda that he is perfectly capable of working, but Brenda insists that she doesn't want to give him "important" work in case he's out sick again. Other than Annie, his coworkers don't talk to him anymore because they feel embarrassed by what has happened. And even Annie is not as friendly as she used to be because her workload has almost doubled since she inherited Richard's duties. Annie declines Richard's offers to help because she does not want to anger Brenda.
The second week of October, Brenda calls Richard into her office and tells him she is postponing his annual review. Brenda then calls a departmental meeting to announce that Annie has been promoted to Payroll Associate. Richard finally decides that he has had enough, and makes an appointment to speak to an employment lawyer.
Although in this example Richard has clearly experienced discrimination in the workplace, most cases are much more subtle.
If you think that your employer is treating you differently from other employees because you are HIV-positive, you should keep a record or journal of events that may help prove it in case you are fired or demoted. You should also always keep copies of your performance reviews, commendation notices, and disciplinary write-ups. Because employment in New York is at will, employers are not legally obligated to provide employees with the contents of their personnel files upon request.
In New York, you can learn more about issues affecting people with HIV at work at "Your Rights and Responsibilities as an HIV-Positive Employee," a monthly seminar conducted by the Legal Services Department at Gay Men's Health Crisis. Call (212) 367-1040 for more information or to speak to an attorney about your rights.
Marla Hassner is Managing Attorney, Litigation in the Legal Services Department at Gay Men's Health Crisis where she specializes in employment and insurance law for people with HIV and AIDS. Ms. Hassner has also served as a volunteer on the GMHC Hotline for almost nine years.
© 1998 by Marla Hassner. All rights reserved.