By Myers, John J.
Public Management , Vol. 87, No. 4
The U.S. Centers for Disease Control and Prevention estimate that between 850,000 and 950,000 U.S. residents are HIV-positive. In other words, they have been infected by the human immunodeficiency virus. New drug treatments are enabling these individuals to live longer, healthier lives and to hold regular jobs. To accommodate employees who are HIV-positive and to avoid charges of discrimination in their dealings with HIV employees and residents, employees must understand the legal rights afforded these individuals.
The primary law governing employee rights is the Americans with Disabilities Act (ADA). ADA applies to employers with more than 15 employees and prohibits discrimination in all employment-related activities. A person who has been diagnosed as HIV-positive is considered disabled under ADA. There are three main areas of concern for employers in dealing with HIV-positive employees:
* Medical leave.
A job applicant or employee is under no legal obligation to disclose his or her HIV status to a current or prospective employer; nor is an employer permitted to ask specific questions about an individual's health and about what prescription drugs a candidate takes. An employer can ask only if the applicant is currently capable of performing the duties of the job.
Under ADA, an employer may require an applicant to take a physical or psychological examination only after it has made a job offer and only to ensure that the applicant can perform the essential functions of the job. An employer may require a fitness-for-duty physical when there is objective evidence that the employee is physically or mentally unfit to do the essential functions of the job or when the employee returns from medical leave.
The ADA requires that employers maintain a separate and confidential medical file for employees, with the information contained in the file accessible only on a "need to know" basis.
It is unlawful to fire, refuse to hire, or take any other adverse employment action against an employee based on his or her HIV status. An HIV-positive person can be fired for other reasons, however, such as poor performance, excessive absenteeism, or downsizing. To avoid liability, an employer should follow the same best practices as apply to all employees: be consistent and fair in dealing with employees, or have a legitimate reason not to be; and document the grounds for all employment actions. …