In recognition of World Aids Day earlier this month, the Equal Employment Opportunity Commission (EEOC) issued a fact sheet describing the rights of workers with HIV infection under the Americans with Disabilities Act (ADA). The document, entitled "Living with HIV Infection: Your Legal Rights in the Workplace under the ADA" describes employee rights with respect to privacy, discrimination, harassment and reasonable accommodation issues. It notes that employees with HIV can keep their condition private in most situations, and that employers may only ask medical questions in limited circumstances including:
- When the employer is engaging in affirmative action for people with disabilities;
- When the employee has asked for a reasonable accommodation due to a disability;
- After the employer has made a job offer but before employment begins, as long as everyone entering the same job category is asked the same questions; and
- When there is objective evidence that an employee is unable to do his/her job or that he/she may pose a direct threat to the health and safety of him/herself or others.
Where an employee does share information on his/her HIV positive status, the EEOC fact sheet reminds them that the employer cannot discriminate against him/her on the basis of that status and cannot rely on myths or stereotypes about the condition to conclude that the employee is unable to do his/her job or poses a safety risk. The employer must also keep information regarding an employee's HIV positive status confidential from coworkers, and work closely to evaluate the provision of an accommodation to employees requesting one.