EEOC Releases New Guidance on Rights of HIV-Positive Employees Applicable to Health Care Providers and Employers
In December 2015, the Equal Employment Opportunity Commission (EEOC) released new guidance for job applicants and employees with HIV infection that is particularly applicable to employers in the health care industry. This guidance is applicable not only to applicants and current employees with HIV infection, but also to physicians and other health care providers who treat individuals with HIV infection to the extent their assistance is requested in obtaining workplace accommodations.
The first publication, “Living with HIV Infection: Your Legal Rights in the Workplace Under the ADA,” discusses rights provided under the Americans with Disabilities Act (ADA). Although the guidance is directed to applicants and employees with HIV infection, there are key takeaways for employers. First, the EEOC emphasizes the workplace privacy rights of those with HIV infection, but reminds individuals that in certain situations an employer may ask medical questions about their condition. Second, HIV infection should be treated as a disability and HIV-positive individuals are protected against discrimination and harassment at work because of the condition. Finally, those with HIV infection may have a legal right to reasonable accommodations at work, which may include altered break and work schedules, changes in supervisory methods (e.g., written instructions from a supervisor), accommodations for visual impairments, ergonomic office furniture, unpaid time off (e.g., for treatment), and reassignment to a vacant position.
The second publication, “Helping Patients with HIV Infection Who Need Accommodations at Work,” informs physicians about their HIV-positive patients’ rights to reasonable accommodations at work. While the guidance effectively coaches health care providers to advocate for their patients’ rights to accommodation, the EEOC reminds providers that that their legal and ethical obligations are not altered by the ADA. Thus, providers should only disclose the medical information if requested by the patient and an appropriate release is signed. Further, providers are reminded not to overstate the need for a particular accommodation in case an alternative accommodation is necessary.
Health care entities should be aware that, in its press release regarding the guidance, the EEOC continues to take the position that HIV-positive employees, even in health care settings, should not be excluded from jobs unless they pose a “direct threat” to safety, a strict standard under the ADA. The EEOC—following CDC guidance—has said that “HIV-positive health care workers who follow standard precautions and who, except in specified circumstances do not perform specially defined exposure-prone invasive procedures, do not pose a safety risks in their employment based on HIV infection.” For example, says the EEOC, an HIV-positive phlebotomist who draws blood does not pose a direct threat to patient safety based on her HIV-positive status if she follows standard precautions.
The EEOC guidance makes clear that HIV infection is a disability under the ADA. Employers should be aware that applicants and employees have a right to privacy and, in most situations, need not reveal the exact diagnosis of their medical illness. Employers should not unnecessarily inquire about the exact illness diagnosis if it is not needed for the purposes of determining reasonable accommodations. Most importantly, health care employers should not use stereotypes or misinformation in evaluating patient safety implications for those employees with HIV infection. Even in safety sensitive positions, an HIV-positive health care employee generally poses no safety risk when using standard precautions. Health care employers should make sure that their front-line supervisors are also aware of the rights of their subordinates who may have HIV infection.