By Leslie Zieren, The McCalmon Group, Inc.
December 7, 2015
On December 1, 2015, the U.S. Equal Employment Opportunity Commission (EEOC) issued two informational documents to assist employers, employees, and health care providers in navigating HIV and reasonable accommodations in the workplace in a manner consistent with the Americans with Disabilities Act (ADA).
This information can help employers avoid discrimination charges that are not caused by discriminatory intent, but instead are the result of applicants, employees, employers, and health care providers simply not understanding the process.
The first document, Living With HIV Infection: Your Legal Rights in the Workplace Under the ADA, addresses the workplace rights of those who are HIV-positive and the entirety of the process of reasonable accommodations for an applicant or employee with HIV, with a focus on the confidentiality of the medical information.
This document contains seven questions and answers, briefly explaining employee and applicant ADA rights, such as those with HIV are not required to disclose this fact to an employer.
Moreover, an employer may not ask an employee if he or she has HIV unless the employer has objective, on-the-job evidence the employee may be unable to perform the job duties or may pose a direct threat to safety because of the condition. An employer may not ask an applicant if he or she has HIV unless the employer asks everyone in the same job category the same question as part of a pre-employment, post-offer conditional medical inquiry.
As the EEOC explains to those with HIV, the "employer cannot rely on myths or stereotypes about your condition to conclude that you are unable to do your job or pose a safety risk."
The second document, Helping Patients with HIV Infection Who Need Accommodations at Work, informs health care providers about creating medical documentation and types of possible accommodations, including responses to safety concerns.
This document has been a long-time coming and will be quite useful for employers and health care providers alike.
Along with a detailed job description, employers have often had to educate physicians as best they can as to the requirements of the ADA, with varying degrees of difficulty and success. This short document should accompany the job description when employers and employees seek guidance from treating physicians and other professionals regarding possible appropriate accommodations.
The document explains what a reasonable accommodation is, as well as types of accommodations for HIV, such as altered work or break schedules; visual impairment accommodations like magnifiers; unpaid leave; or permission to work from home.
The document also discusses safety concerns and defines "direct threat." The health care provider is instructed that "[i]f you provide an opinion as to whether your patient would create a safety risk, you should estimate the probability of harm occurring under the patient's actual day-today working conditions and current treatment regimen, based on current medical research to the extent possible….If safety precautions would reduce the risk of harm, you should describe what they are."
Item 10 on this document suggests a format for health care providers to follow. They are instructed not to "simply provide your patient's medical records, because they will likely contain unnecessary information." Instead, health care providers should use "plain language" for: professional qualifications and length of patient relationship; a general statement of type of disorder; the patient's functional limitations in absence of treatment; the need for an accommodation; and suggested accommodations.
When explaining the need for an accommodation, the health care provider should explain how symptoms make performing the particular function more difficult and address problems that may be helped by a reasonable accommodation. This is where the level of detail in the job description provided by the employer becomes particularly important.
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