Discrimination in Employment:  What are my rights if I have HIV or AIDS?

This article is from "Living with HIV Disease - A Legal Guide for Louisiana" (5th Edition), published by AIDSLaw of Louisiana, Inc. and available in full online at www.aidslaw.org.

People in certain jobs face special problems, and that will be talked about below.  All private employers with 15 or more employees (except certain private clubs), all private employers who get government funds, and all state and municipal employers, are covered by state and/or federal anti-discrimination laws.  Labor unions and employment agencies are also covered by these laws. 

How do these laws protect me? 

• As long as your condition does not interfere with your ability to perform your "essential job functions," these laws protect you against discrimination in any of the terms and conditions of employment. 
• Even if your condition does interfere with your ability to do your job, the law may require your employer to make "reasonable" accommodations within your job environment or duties if these will enable you to do the job.  This might mean adjusting your hours or work assignments if these adjustments do not "unduly burden" the employer. 
• You may also have the right to take a certain amount of time off from work for medical care under the Family and Medical Leave Act.  (Your employer can, of course, let you go if you become too sick to do your job, but even then it must offer you the same benefits it offers other medically discharged employees.)
• An employer cannot discriminate against you if co-employees refuse to work with you or if customers refuse to patronize the business because of your condition. 
• If you are harassed by your co-employees and your employer does not attempt to stop it, you may have the basis for a lawsuit against the employer. 
• Additionally, the federal Employment Retirement Income Security Act (ERISA) prohibits employers from discharging you to prevent you from claiming employee benefits such as health care or disability pay.

However, there are real and practical limits to these laws:  

• Not all employers are covered. 
• If an employer is covered, it can often find a pretext for firing you other than HIV/AIDS.  Your employer may feel it has no option but to ignore the law if, for example, you are a cook and no one will patronize the restaurant because of your HIV status. 
• Finally, the law is not self-enforcing:  you will need to bring a lawsuit, you will need to convince a judge or jury that you have been discriminated against, and, even if you succeed, you will probably have to wait several years before you are paid.  Thus, your best protection against discrimination is maintaining the confidentiality of your HIV status. 

When should I tell my employer?  While keeping your HIV infection a secret is your best defense against discrimination while you have no symptoms, you will have to tell your employer something if you need to take time off for illness or treatment.  At some point you may need to tell your employer of your condition to qualify for sick leave or disability pay, in order to have your medical expenses covered, or to qualify for protection under the anti-discrimination statutes.  You should speak with a lawyer in deciding how much to reveal to your employer and when.

What should I do if I'm discriminated against?  If you do encounter discrimination, seek legal help.  In order to bring a lawsuit based on federal anti-discrimination laws, you must file a complaint with the Louisiana Human Rights Commission (LHRC) and then with the federal Equal Employment Opportunity Commission (EEOC) within 90 days.  Some circuits have held that filing a complaint with the LHRC is no longer a preliminary step to filing a complaint with the EEOC.  If you choose to file a complaint with the LHRC, you must do so timely or your claim will lapse.  The time limit for filing a complaint with the LHRC is within 180 days of the action on which your complaint is based.  The time limit for filing with the EEOC is within 300 days of the action on which your complaint is based.  These agencies will investigate your complaint, attempt to resolve the dispute, and the EEOC may take legal action on your behalf.  Although you do not need an attorney at this stage, one may be able to speed up the process and obtain a more favorable result.  If the EEOC cannot get a settlement and does not sue for you, it will give you a "right to sue letter."  At this point you will need a lawyer to help you file a lawsuit within 90 days.

You don't have to file an administrative complaint before bringing a lawsuit based on state anti-discrimination law, although the LHRC will investigate and attempt to resolve violations of state law as well.  But whether you file a complaint based on state law or not, you must still file a complaint to preserve your rights under federal law. 

How do I reach the EEOC or the LHRC?  Here is how to reach them:

Equal Employment Opportunity Commission (EEOC), 701 Loyola Avenue, Suite 600, New Orleans, LA  70113-9963; Tel. No. (800) 669-4000.  The EEOC federal website is www.eeoc.gov.

Louisiana Human Rights Commission (LHRC), P. O. Box 94094, Baton Rouge, LA  70804; Tel. No. (225) 342-6969.

Additionally, if you are covered by a collective bargaining agreement, whether or not you are a union member, you should file a grievance with your union.

Employers covered by the Americans with Disabilities Act (ADA) have no right to ask whether you have any disability until after they have made a conditional offer of employment.  Apart from screening for illegal drugs, you should not have to undergo any medical exam as part of your job application process.  If you have to take a pre-employment drug test and are asked if you are on any prescription medication, give the full chemical name of any HIV-related drugs, not a commonly recognized name such as AZT.

After you have been offered a job, but before you begin working, you may have to go through a medical exam - but only if it is required of all other incoming employees.  The ADA allows these post-offer, pre-employment medical exams.  After you start working, your employer can require medical information or exams only to assess your ability to do your job. 

The doctor and other medical personnel performing these exams work for your employer and will report the results of the exam to your employer without your permission.  But most exams don't ask about or test for HIV because few employers have a legitimate need for this information.  If an employer demands an HIV test, takes action against you for refusing an HIV test or takes action against you after learning the results of an HIV test, you should immediately contact a lawyer.

An employer may also want a report from your private doctor if you have been out sick.  If you are planning to return to work, speak to your doctor about leaving out any mention of HIV or AIDS from the report.  Your doctor can just report the particular illness you had, without reporting that it is secondary to HIV-infection.  If the particular illness is closely associated with HIV/AIDS, your doctor can usually describe the illness more generally.  For example, the doctor can say you had pneumonia rather than PCP.  If your employer is involved in processing your health insurance claims, you should ask your doctor to make similar reports on these forms as well.

However, there may come a time when you will need to give your employer with more information.  If your illness will permanently prevent you from returning to work, it is usually wise to let your employer know that you have HIV/AIDS.  At that point, you should no longer have to worry about job discrimination and informing your employer of your condition may protect your rights to disability income and health insurance.  Again, however, speak with a lawyer before telling your employer.

Reporting and Practice Restrictions.

Public hysteria surrounding AIDS has been greatest on the issue of HIV-infected health care workers (HCWs).  In Louisiana, as in most other states, this has led to reporting requirements and practice restrictions.

Under Louisiana law (Revised Statutes 37:1747), the various state health care licensing boards (the Boards of Medical Examiners, Dentistry, Chiropractic Examiners, Nursing, and Practical Nurse Examiners) have each issued regulations on HIV-infected members of those professions.  These regulations are, by law, based on guidelines issued by the federal Centers for Disease Control (CDC). 

                Reporting Requirements.

Some differences exist between the regulations of different boards.  But all except the Board of Chiropractic Examiners require that HIV-infected members who perform or may perform "exposure-prone" procedures report themselves to their respective boards. 

                 Practice Restrictions.

Additionally, the Boards either forbid an HIV-infected HCW from performing or directly participating in an "exposure-prone" procedure or require the HCW to inform patients of his or her HIV-infection before doing so.

The CDC's definition of "exposure-prone," includes almost all of dentistry and surgery:

         "Characteristics of exposure-prone procedures include digital   palpitation of a needle tip in a body cavity or the simultaneous presence of the HCW's fingers and a needle or other sharp instrument or object in a poorly visualized or highly confined anatomic site."

Most of the Boards have added this to this definition:  "or any other invasive procedure in which there is a significant risk of contact between the blood or bodily fluids of the HCW and the blood or bodily fluids of the patient."  Given this vague standard, it is very difficult to know whether many procedures are "exposure-prone." 

HCWs not involved in exposure-prone procedures do not need to report themselves and do not face any practice restrictions under these regulations.

The regulations currently do not require that HCWs be tested for HIV.  However, failure to report oneself or failure to stop involvement in exposure-prone procedures could cause an infected HCW's license to be suspended or revoked.  At this time, it does not appear that the HCW licensing boards are actively searching out infected HCWs.  If you are being investigated by your licensing board, you should immediately contact a lawyer.

These regulations are the subject of considerable controversy.  The CDC guidelines were strongly criticized when they were published, in July of 1991.  The CDC had initially planned to add a list of "exposure prone" procedures, but abandoned this idea when all major national medical organizations refused to participate, pointing out that there is no evidence that any procedure is "exposure-prone."  In an about-face, the CDC then all but publicly announced its intention to revise its guidelines, taking out restrictions on HIV-infected workers and instead requiring universal precautions.  It was stopped from doing this by political pressure from within the first Bush Administration.  It did, however, announce that states which did not limit the practice of HIV-infected workers, but mandated universal precautions, would be considered to meet the guidelines.

The CDC is revising these guidelines now.  The changes are likely to suggest fewer restrictions on HIV-infected HCWs.  This would bring into question whether the state boards' current regulations are "based on" the CDC guidelines.

It has been argued that practice restrictions are an unreasonable restriction on a disabled person's right to work, and thus violate the Americans with Disabilities Act and similar state statutes.  However, to date courts have not agreed, ruling for example that a hospital can deny privileges to an HIV-infected surgeon or fire an HIV-infected surgical assistant.  Given the exaggerated fear of HIV transmission that still exists in medical settings, this is unlikely to change any time soon.

                Mandatory Testing.

The federal appeals court for the region that includes Louisiana has ruled that a hospital can insist its employees take an HIV test.  This is so even if there is no risk of body fluid contact between the HCW and a patient.  The court reasoned that anyone with HIV could rapidly become physically or mentally impaired and thus needed to be closely monitored to assure that he or she was providing proper patient care.  Few area hospitals have followed the court's invitation to widespread mandatory testing.

                 Worker's Compensation.

If you could be exposed to HIV on your job, your employer may want to know your HIV-status before you begin work.  This is to protect the employer from unfounded worker's compensation claims.  Some employers, aware of the concerns about confidentiality, do not initially ask for an HIV test, but will want one immediately after you suffer a needle-stick or other possible exposure.  In this situation, the only consequence of refusing to submit to a test should be a bar to a worker's compensation claim.

If you are HIV-infected, you will not be allowed to join any branch of the armed forces.  All new recruits are required to take an HIV test. 

If you are already in the military, you may have to take periodic HIV tests.  You will not be dismissed just for being HIV-infected, however.  Congress has passed laws that make it illegal to use HIV test results for adverse personnel action.  But homosexual activity and I.V. drug use are still grounds for disciplinary action and for discharge.  (Although the armed services have stopped routinely asking new recruits about sexual orientation, this policy does not apply when there is "cause" to believe someone is homosexual, and being HIV-infected may be such "cause.")  Since you cannot get disability retirement if you have a disciplinary charge against you, be cautious of admitting homosexual behavior or I.V. drug use.

Additionally, if you have any symptoms, the military may attempt to exaggerate the severity of your condition and give you a disability discharge, even though you are well enough to perform your duties.

If you believe your HIV-status has resulted in adverse personnel action, speak with a lawyer.