Employers are bound by federal laws, and in some cases, state and city laws, to ensure that HIV-positive workers have job security, privacy, reasonable accommodations (when necessary) and a workplace that is free of harassment and discomfort.

The main federal law that protects employees living with HIV is the Americans with Disabilities Act (ADA), which prohibits discrimination against people who are disabled or perceived to be disabled in any workplace with at least 15 employees (not including federal agencies, which are covered by the Rehabilitation Act, below). In 2008, Congress amended the ADA to clarify that its protections extend to people living with HIV.

The Rehabilitation Act of 1973 prohibits disability discrimination by federal agencies or contractors or by employers that receive federal funding.

Under both laws, employers may not refuse to hire and may not terminate a person with a disability unless the individual’s disability truly would prohibit him or her from being able to safely perform the “essential functions” of the job. 

Employment decisions can’t be based on the fear that someone might be more ill in the future; only an employee’s current situation can be considered.

Similarly, fear of higher costs for medical insurance or workers’ compensation costs cannot affect an employer’s decision about whether to hire or fire someone.

In addition to the direct prohibition against discrimination, the two features of the ADA that play an important role for people living with HIV are these:

1. Workplace confidentiality

2. The right to reasonable work accommodations that permit the employee to perform the essential duties of her or his job despite any minor limitations on what the person is able to do.

1. Workplace confidentiality

The ADA outlines specific rules about providing confidentiality and privacy for job applicants and employees with HIV:

• Applicants do not have to disclose their HIV status to a prospective employer unless it affects their ability to perform the job.
• Before making a job offer, an employer cannot test applicants for HIV.
• Once an employer makes a “conditional offer” (one conditioned solely on passing a physical or medical exam), employers can require that a prospective employee take an HIV test, but only if the test is required uniformly of all persons considered for that position.
• An employer can ask general questions about a prospective employee’s health prior to making a conditional offer of employment, but only if the questions are not likely to reveal a disability. Furthermore, employers can’t use an employee’s answers to screen out people with disabilities unless the exclusion is based on inability to perform job-related functions even with a reasonable accommodation.
• After an employee is hired, an employer can usually only ask questions about disability or health if the inquiry is “job-related and consistent with business necessity.”
• All information and records collected by an employer about an applicant’s or employee’s medical condition must be kept confidential by the employer.

2. Reasonable work accommodations

Another useful federal safeguard for employees living with HIV is the right to reasonable accommodations. Depending on the circumstances, an employer’s reasonable accommodations could include approving a flexible schedule, modifying the non-essential job duties, or agreeing to other adjustments that allow a disabled employee, including one with HIV, to perform the essential functions of a job.

Under the ADA, whether an accommodation is “reasonable” and must be provided depends on the specific job, the extent of the employee’s needs and the employer’s size. An employer has the right to ask for information to make sure the employee is disabled and in need of reasonable accommodations. However, it may be possible for a medical professional to establish the need for an accommodation without revealing a particular diagnosis, such as HIV. An employer need not provide an accommodation that is overly expensive or too administratively difficult.

(Click here for more information about how the ADA covers employees with HIV).

See “What should I do if I believe I’ve been discriminated against at work for being LGBT or HIV-positive?”

Common workplace accommodations made for people with HIV include time off for doctor’s visits and flexible work schedules for employees who experience fatigue at certain times of day.

To request a reasonable accommodation as a person living with HIV, follow these steps:

• Approach your immediate supervisor first.
• If your immediate supervisor does not respond favorably, you may need to enlist the support of your human resources department or a union representative.
• Keep in mind that not everyone you speak to in your workplace may be held legally accountable to protect your confidentiality, especially those who are neither in Human Resources nor in a chain of supervision over you.
• If your employer asks for proof that you are disabled, you may want to consult an attorney before making a disclosure about your HIV status.
• Your employer may consider it sufficient for your doctor to explain in writing that you have a “chronic condition” that causes you to need the accommodation you are requesting, without specifying what that condition is.  However, some employers do require their disabled employees to provide a medical diagnosis.

Consider the following when making a request:

• Be specific. Put your request in writing, and use the word “accommodation.”
• Be strategic. Always emphasize how productive the accommodation(s) will make you.
• Be realistic about your request. Your employer’s obligation to accommodate you will depend on the particular facts of your situation, such as the size and type of business, the job at issue and the type of accommodation you are requesting.
• Ask your employer to be prepared to address any backlash you receive from coworkers who feel you are getting “special treatment.”
• Be pro-active. Bear in mind that you will not be in a good position to negotiate if you request reasonable accommodations retroactively. For example, you will be in a better position if you ask your employer ahead of time for flexibility about your arrival time, rather than waiting until you are approached by your supervisor for arriving late to work every day for a month, and then saying, “You need to let me come in late because I have a condition that makes it very difficult for me to be on time.”