During the interview process an employer may not inquire about an individual’s disability or the seriousness of the disability. However, an employer may inquire about an individual’s ability to perform job related duties and responsibilities. An employer’s decision to hire someone after conducting a post-offer medical examination must not be based on one’s HIV-positive status alone, without some other complication. This does not mean that an employer cannot make a conditional job offer while awaiting an adequate outcome of a post-offer medical examination so long as this is required of all new employees with the same job title.
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Although, an employer may not use an employee’s status against them the ADA does require that an employee’s status be securely kept on file once it has discovered. This is protected health information (PHI), which must be kept confidential and separate from general personnel files. Appropriate safeguards must be put in place to protect the employee’s status. Further, this file must only be accessed in limited circumstances.
The Health Insurance Portability and Accountability Act (HIPAA) is a federal law and its Privacy Rule: (1) protects the privacy of patients’ medical records and other health information provided to health plans, doctors, hospitals and other health care providers; (2) provides patients with access to their medical records; and (3) allows patients to determine how their personal health information is used and disclosed.
Under the ADA, employers are required to make “reasonable accommodations” for their disabled employees. A “reasonable accommodation” is any modification or adjustment to a job, application process, or work environment that will enable the qualified applicant or employee with a disability to perform the essential functions of a job, or enjoy the benefits and privileges of employment. The ADA does not impose a requirement that an employer make accommodations that would result in undue hardship for the business.
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Reasonable accommodations are only required to be made by an employer for known disabilities. Therefore, if an employee elects not to disclose their status then it is unlikely that the accommodation will be made. In some instances, an employee may only choose to disclose that they have a disability that is protected by the ADA requiring reasonable accommodations without specifying what the disability is. Under this approach, an employer would be well within his right to require medical documentation of the disability prior to making the accommodation.
Employees do have some responsibilities regarding their status. If an HIV-positive employee is a health care worker they must inform their occupational health department of their status.
Many states have enacted laws regarding an individual’s HIV status and how their privacy and other considerations should be managed. This is a brief overview of the ADA and other laws that govern an HIV-positive individual’s rights. For more detailed information about your legal rights regarding your HIV/AIDS status about this issue and others, please contact a licensed attorney.
Jamaal R. Jones, Esq. is the Founding Partner of Jones Health Law, P.A. a law firm dedicated to providing legal services to Healthcare Professionals.