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The Supreme Court’s decision is still out on giving workers a clear interpretation of their protections under the Americans With Disabilities Act (ADA). However, AIDS legal experts say the ADA does offer protection to HIV-infected workers, and these employees should seek reasonable accommodation at their workplaces whenever possible and necessary. Despite this seemingly good news, there is evidence that at least some HIV-infected patients have postponed antiretroviral treatment or taken early leave from their work rather than be faced with disclosing their HIV status.
"When people are trying to decide whether to tell a boss or supervisor that they’re positive, every situation is different," says Ben Klein, an attorney with Gay and Lesbian Advocates and Defenders in Boston. "It’s based on their own status level and the environment of the workplace. Some people struggle with whether they need to disclose their HIV status in asking for reasonable accommodation."
The ADA provides anti-discrimination protection to disabled employees. "Most anti-discrimination laws don’t require documentation [of disabilities] because they’re self-evident," says James D. Slack, PhD, professor and chairman of the department of government and public service and senior scientist in the Center for AIDS Research and the School of Medicine at the University of Alabama at Birmingham. "But with HIV, there is no way you can tell who is HIV-positive and who isn’t, and hence it becomes a little more difficult to document that," Slack adds.
Therefore, employees who are HIV-positive may have to disclose their status to certain managers in their company so that if they are discriminated against based on their disability, they have proof that the managers knew of their disability. Managers also will need to know of a worker’s disability if the worker wants managers to make changes to the individual’s job to help the disabled worker better handle the job requirements.
Physicians may be called upon to verify an employee’s disability. While this might sometimes mean confirming that the employee is HIV-positive, it doesn’t necessarily have to mean disclosing the person’s HIV status, Klein says. Employers have a right to ask what the patient’s disability is that necessitates the reasonable accommodation. But employees do not have to give employers every detail of their health condition, he explains. "There are strategies people can think about using if they want to disclose that they have a health condition that would qualify as a disability under the ADA, but they don’t want to specifically name their HIV status," he says. "If an employer insisted on knowing the nature of the disability, it would be sufficient if a doctor said an employee with a history of respiratory problems becomes fatigued because of his or her respiratory problems and needs accommodation."
This strategy won’t work for all HIV-infected patients, because many are symptom-free, but it will work for some. It’s up to doctors to help patients when they need some ADA protection but are fearful of disclosing their HIV status to their boss, Klein says.
If an employee fears disclosing his or her HIV status to an employer and is subsequently fired without a known cause, the employee has not necessarily lost all ADA protection, Klein says. "In many situations, the employer may not have confirmation but may assume that someone is HIV-positive or has AIDS based on the employer’s own perception of the disease," he notes. "They may think this person is a gay man and is losing weight or is taking a lot of medications, and so they jump to the assumption that the person has HIV." When this happens, the employee could file a lawsuit against the employer and could make use of evidence that the employer was operating under the assumption that the patient had HIV, Klein says.
Still, this is more difficult course of action than forthright disclosure. "The only way to force a company to consider accommodations is by standing up on that bus," Slack says. "If you don’t, you are hoping for the best, and most people who do that tend to get sick quicker and fall into poverty much quicker, using their life savings to cover prescriptions that their health insurance policies already cover, and they don’t take sick days because they wait until they’re really sick, so they tend to die sooner."
When advising HIV-infected people about when and how to disclose their HIV status, it really depends on the individual person’s work setting, position, and personal views, says Catherine Hanssens, a lawyer and director of the AIDS Project at Lambda Legal Defense and Education Fund in New York City. "There still are some highly paid professional men who wouldn’t dream of disclosing it," Hanssens says. "And there are some people who will disclose and let the consequences be damned."
In many cases, the best approach is to disclose one’s HIV status to management so that if there is discrimination, it can be proved that there’s a connection, she adds. "But I’d be more cautious in advising someone who works on a construction site where he could be hit from three stories overhead by a dropped screwdriver."
Whether they disclose or not, HIV-infected patients should document in writing all positive reviews and aspects of their work performance. They could write a supervisor who had verbally paid them a compliment and say, "I really appreciate the support, and the fact that you think I’m doing an excellent job really means a lot to me," suggests Hanssens. "Just don’t make it look like you’re creating a paper trail," she says. "On the flip side, if you are not doing well on your job, then your HIV status or any disability is not going to protect you."
In some cases, perhaps the only reasonable accommodation an HIV-infected employee needs is to be able to refrigerate medication. Employees who fear disclosure need not say what the medication is for, but they should write a memo making the request, Hanssens says. It could read: "I have a disability that requires me to take medications regularly, and I need a refrigerator to do that."
HIV-infected employees should be realistic about their expectations for reasonable accommodation at work, Hanssens says. For instance, for an employee who is self-directed and is not required to be present from 8 a.m. to 5 p.m., it might be reasonable to ask for various afternoons off to see a doctor. But if the worker is a receptionist and the employer would have to hire someone to fill in whenever the employee took off, absences might not be considered reasonable, and that employee should consider finding a more flexible position, Hanssens says.
Slack conducted research of how reasonable accommodations were interpreted and used by employers of a small group of HIV-infected men and women in California. He found that several participants were permitted to use flextime and were given equipment that enabled them to work partially at home. Some other ways their disability was handled include these:
• One person was allowed to work indoors during the winter months.
• Another man was given five-minute breaks whenever he needed them.
• One man could take paid time off for counseling sessions when he could fit this in his schedule.
• A cashier with neuropathy in his feet was given a bar stool to sit on.
• Several were allowed to take unpaid time off for medical reasons.