On the occasion of World AIDS Day, the EEOC released two new publications designed to assist employees and their health care providers in handling HIV/AIDS in the workplace.  The new publications got us (and some other employment law bloggers we admire) thinking about what employers’ obligations are when an employee is HIV positive.

The Americans with Disabilities Act and corresponding state laws prohibit discrimination against applicants and employees living with HIV and impose certain requirements on covered employers. Harassment on the basis of disability, including HIV positive status or AIDS, is prohibited, just as harassment based on race or gender is prohibited.  Employers are obligated to investigate complaints of harassment based on disability and take appropriate remedial action if harassment is found to have occurred.

Employers have the same obligation to reasonably accommodate employees living with HIV that they have when employees experience any disabling condition.  (As Eric B. Meyer pointed out, not all courts believe HIV is disabling, but the prevailing view is that HIV positive status and AIDS qualify as disabling conditions.) Reasonable accommodation considerations for employers include the following:

Employers must engage in the interactive process.  Employees in need of reasonable accommodation are required to ask for it. The EEOC tells employees that they may be able to keep their diagnosis private, but will be required to describe their condition and explain how it affects their work.  It then becomes the employer’s responsibility to work with the employee to identify  a reasonable accommodation that allows the employee to do her work.

Medical certifications may be necessary to determine an accommodation.  As the EEOC publication to health care providers notes, a provider should supply medical information about an employee that allows the employer to evaluate whether to provide a reasonable accommodation.  The EEOC specifically encourages providers to explain how a reasonable accommodation can help the employee, but notes that providers need not detail the diagnosis of HIV.

The undue burden analysis for reasonable accommodation is the same for HIV/AIDS.  Reasonable accommodation of a qualifying disabling condition - whether it is cancer, diabetes, blindness, a broken leg, or HIV positive status - is required unless providing the accommodation imposes an undue burden on the employer.  The specific nature of the employee’s condition or diagnosis should not be the focus of the employer’s analysis of its responsibility to accommodate, and does not determine what is or is not an undue burden. 

The stigma that HIV/AIDS creates a direct threat to employees is not based in fact.  A disability discrimination claim can be defended if the employer can establish that the disabling condition is a direct threat to the health or safety of other employees.  As the Department of Justice outlined in its HIV Q&A, “Transmission of HIV will rarely be a legitimate ‘direct threat’ issue. … [T]here is little possibility that HIV could ever be transmitted in the workplace.”  Unless an employee is regularly exchanging blood or other bodily fluids with other employees, the direct threat defense is unlikely to succeed. It is certainly not sufficient for an employer to claim that other employees believe they are at risk because of a co-worker's HIV status.