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One area in which we expect to see an increase in discrimination charges in 2016 is employees with HIV/AIDS. On December 1, 2015, the EEOC announced that it resolved almost 200 charges of discrimination based on HIV status in the 2014 fiscal year and obtained over $825,000.00 for job applicants and employees with HIV who were denied employment and reasonable accommodations. In an effort to expand upon these efforts, the Commission issued new guidance regarding the rights of HIV-positive employees and the role of physicians in assisting patients with HIV who need accommodations at work.
The guidance, titled “Living with HIV Infection: Your Legal Rights in the Workplace Under the ADA” and “Helping Patients with HIV Infection Who Need Accommodations at Work,” make clear that employers cannot rely on myths and stereotypes in its treatment of employees with HIV. As with any disability, employers must rely on objective criteria in their hiring, firing, and promotion procedures.
The EEOC’s effort to reduce the stigmatization of individuals with HIV is particularly evident in the guidance’s focus on reasonable accommodations. In a somewhat novel approach, the guidance makes clear that employees need not disclose their specific condition when requesting accommodations. Instead, employees and their treating physicians can use more generic language to describe the condition, such as “immune disorder.” While the guidance does not expressly prohibit employers from inquiring into the exact nature of the disorder, employers are encouraged to focus on the specific limitations that an employee experiences, rather than the disorder itself.
If an employee requests and demonstrates a need for accommodation based on symptoms associated with HIV infection, side effects of HIV medication, or another impairment developing as a result of the infection, the employer must engage in an interactive process to identify appropriate accommodations. Notably, the guidance offers a list of possible accommodations that employers may be obligated to provide, including altered break and work schedules (e.g., frequent breaks to rest or use the restroom or modified schedules to accommodate medical appointments), changes in supervisory methods (e.g., written instructions from a supervisor who usually does not provide them), accommodations for visual impairments (e.g., magnifiers, screen reading software, and qualified readers), ergonomic office furniture, unpaid time off (e.g., for treatment or recuperation), permission to work from home, and reassignment to a vacant position if the employee can no longer do his or her job because of the condition.
While employers are entitled to the usual defense that an accommodation would cause undue hardship, the specificity with which the guidance sets forth possible accommodations should give employers an indication as to what the Commission will look for in its investigation into discrimination charges. It is therefore crucial that supervisors and human resources officers are well versed in how to engage in the interactive process with employees affected by HIV without defaulting to the myths and stereotypes that the guidance sets out to combat.