by Todd Pilcher (updated December 2010 by Amy Killelea and Robert Greenwald, Treatment Access Expansion Project)
Many HIV+ people encounter legal problems associated with their health status. Occasionally HIV+ people face discrimination in employment, housing, and medical care. Fortunately, there are numerous legal protections from these types of discrimination.
HIV+ people are protected from employment discrimination by federal law and in many cases by state and local laws too. Under these laws, if an HIV+ person is qualified to do the job and can perform the essential functions of the job, an employer cannot reject, terminate, demote, or deny promotions to an HIV+ employee or job applicant because of his or her HIV status. Additionally, an employer cannot harass or mistreat an HIV+ employee because of prejudice or fears of the employer, supervisor, co-workers, or customers.
The Americans with Disabilities Act (ADA) is the most important federal protection from employment discrimination for HIV+ people. This law states that employers with at least 15 employees cannot fire, demote, or refuse to hire a person on account of his or her disability or the perception that he or she has a disability. Under the law, HIV+ persons are considered disabled. In 2008, the ADA was amended to broaden its scope and protections, making it easier for people with HIV to show that they are disabled. In addition, employers can no longer take mitigating measures (e.g., the positive effects of medication) into consideration in determining whether someone is disabled; in other words, your ability to cope with HIV-related symptoms does not affect your status as disabled within the ADA.
The following rights may apply to employees or job applicants working for employers with 15 or more employees:
- An interviewer cannot ask a job applicant if he or she is HIV+
- An employer cannot refuse to hire a qualified candidate on account of his or her HIV+ status, unless the employee would pose a direct threat or significant health risk to co-workers or members of the public. However, there are only a few professions, such as surgeon, where an HIV+ person might pose a health risk as an employee.
- Employers cannot ask job applicants to take a medical test unless they have already offered the job and only if everyone applying for the job has to take the same test. The employer cannot withdraw a job offer based on the results of the HIV test, unless being HIV+ would prevent the employee from doing the job.
- All information about an HIV+ employee’s health condition must be kept confidential and may only be revealed to people in the company with a need to know. For example, the company nurse may have a need to know about the specific health conditions of employees.
A reasonable accommodation is a change in workplace or routine that enables a disabled person to do his or her job. A person with a disability may be entitled to a reasonable accommodation if he or she can still perform the essential functions of the job as long as the accommodation is made. For example, reasonable accommodation for an HIV+ person might be more flexible hours or time off to visit the doctor.
- You have to request a reasonable accommodation in order to get one. Often, the employee will have to notify the employer of the specific health condition leading to the disability. The employer must keep this information confidential, and can only reveal it to people in the company with a need to know.
- The employer does not have to offer you the accommodation you request if it would cause “undue hardship.” For example, a small employer does not have to offer an accommodation if it would be too expensive for the company.
Even if you work for an employer with less than 15 employees, you may be protected against discrimination by state and local laws. Most states and cities have laws prohibiting employment discrimination against HIV+ persons. Often these laws apply to all employers in the relevant state or city, without regard to the number of employees. For more information about state and local anti-discrimination laws, contact a legal services organization in your community.
The ADA protects HIV+ people from health care discrimination. State and local laws may also protect HIV+ people from health care discrimination. Under the laws, your doctor or dentist cannot refuse to treat you because you have HIV. Additionally, you do not have to disclose your HIV status to your doctor or dentist, however, in many instances it may be in your best interest to do so in order to maximize the effectiveness of your care and treatment. For instance, it is important for your doctor to know about any HIV medications you may be taking to avoid harmful interactions with other medications.
Doctors and dentists are supposed to use universal precautions when treating patients. Universal precautions protect medical providers by requiring them to treat all bodily fluids as potentially hazardous. Therefore, medical providers working with bodily fluids should wear gloves and masks, and use proper sterilization and disposal techniques when performing medical procedures involving bodily fluids for all patients.
Right now, it is essentially impossible for people with HIV to get an insurance policy in the private market. The health care reform law passed in March of 2010 helps to change this situation. First, effective immediately, every state is required to have a temporary high risk pool up and running, allowing people who are unable to obtain insurance in the private market (because of a preexisting condition like HIV) to purchase insurance. These risk pools will be running until 2014,when it will be illegal for any insurance company to deny you coverage simply because you have HIV.
HIPAA provides several protections for people living with HIV and AIDS. Most importantly, the law limits the coverage exclusion period that group health plans can impose simply because a person has HIV (or any other preexisting condition). HIPAA also requires health care providers to put in place privacy policies to ensure the confidentiality of personal health information, such as information about someone’s HIV status.
HIV+ people are protected from housing discrimination by the Fair Housing Act and by state and local laws. These laws say that landlords cannot discriminate against people with disabilities, including HIV+ people. Under the housing laws:
- A landlord cannot refuse to rent to someone because he or she is HIV+
- A landlord cannot try to evict a tenant because he or she is HIV+
- A landlord cannot harass or mistreat a tenant because he or she is HIV+
- A landlord may only evict an HIV+ person for legitimate reasons such as nonpayment of rent or breaking the terms of the lease
If you have additional questions about employment, medical, or housing discrimination against HIV+ people or believe you have suffered this kind of discrimination, you should immediately contact a civil rights attorney or a legal services organization in your community that provides legal assistance to HIV+ people.