Business Law Articles
By: Connie Elder Carrigan, Esq.
Smith Debnam Narron Drake Saintsing & Myers, LLP
Raleigh, North Carolina
This past November, actor Charlie Sheen announced that he is HIV-positive. As a public figure, Sheen sees the need for a national conversation on the unfair treatment of people with HIV, and he wants to do his part in raising awareness. Reducing HIV-related disparities and health inequities across this country, including the stigma and discrimination against persons living with HIV is a central goal of the Obama Administration’s National HIV/AIDS Strategy, published in July of 2015. To that end, the Equal Employment Opportunity Commission (EEOC) issued a new publication on January 8, 2016, titled “What You Should Know About HIV/AIDS and Employment Discrimination.” The focus of the piece is to guide employers, job applicants, and employees regarding their rights and responsibilities in eradicating employment discrimination against those living with HIV and AIDS.
Between 1997 and 2014, the EEOC received more than 4,000 charges alleging violations of the Americans with Disability Act (ADA) on the basis of an individual’s HIV status. Title I of the ADA prohibits employers from discriminating against job applicants and employees on the basis of disability. The law also protects nondisabled applicants and employees who are perceived as having a disability, as well as persons with a known association or relationship with an individual who is HIV-positive.
A disability, as defined by the ADA, is a physical or mental impairment that substantially limits one or more major life activities or a record of such an impairment. A person also qualifies as an individual with a disability if he or she is subjected to a prohibited action due to an actual or perceived impairment. As explained by the EEOC, someone who is HIV-positive meets this definition because HIV substantially limits major life activities due to having an impaired immune system. If that individual can, with or without reasonable accommodation, perform the essential functions their job, that person is qualified for the position.
In evaluating the ‘reasonable accommodation’ requirement that an employer provides reasonable accommodation to the known limitations of an otherwise qualified individual with a disability unless the accommodation would be an undue hardship, the EEOC provides an example of an employee with HIV, who must take medication on a strict schedule. If that employee requests permission for daily breaks to take medication and wait for it to take effect, the employer must grant this request absent any undue hardship that involves significant difficulty or expense or requires the employer to change the nature of the business.
The EEOC guidance also reminds employers within the context of evaluating HIV status that the ADA strictly limits when employers may ask medical questions or require medical exams, and that applicant and employee medical information must remain confidential. While an employer may exclude an applicant or employee with a disability from a particular position if it poses a direct threat to health or safety in the workplace, the EEOC points out that such exclusions are not to be based on generalizations or unfounded fears. For example, according to the EEOC, an HIV-positive phlebotomist who draws blood does not pose a direct threat to health or safety in the workplace because the best available medical evidence says it doesn’t so long as the phlebotomist adheres to standard precautions.
In its recent guidance, the EEOC details several lawsuits it has filed against employers that refused to hire applicants or terminated employees as a result of the HIV status. The EEOC also stresses its commitment to ensuring that employers, state and local governments, and people with disabilities are aware of their rights and responsibilities under the law. The EEOC remains focused on combating stigma and discrimination, educating the public on these issues, and doing whatever is necessary to realize the Obama Administration’s vision as outlined in the National HIV/AIDS Strategy.
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