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Don't Just 'Walk it Off': Protections in the Workplace for Employees With HIV

Don't Just 'Walk it Off': Protections in the Workplace for Employees With HIV

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If your employer wants you to suck it up and work without disability accommodations, here's what you need to know.

Most people with HIV are now able to manage the disease and go about their daily lives in a way that draws little attention. Counterintuitively, this can actually cause workplace issues to arise — precisely because when the condition is well managed it can be almost impossible to observe externally. Although many live full, normal lives, management of HIV can also demand a lot: in time, money, and the mental anguish of facing HIV stigma. Because bosses often cannot see their HIV-positive employee’s challenges, they may be dismissive, leading to a worsening working environment, poor relationships, and a less productive employee. In this situation, everybody loses.

After a series of judicial decisions narrowly construing the conditions covered by the Americans with Disabilities Act, Congress revised the ADA in 2008 with the Americans with Disabilities Act Amendment Act. The result is a more expansive interpretation of what constitutes a disability under the act.

The ADA has long included mental health problems among the class of covered disabilities, but new regulations more explicitly identify the types of disabilities covered. The regulations list a set of ailments that “[g]iven their inherent nature… will, as a factual matter, virtually always be found to impose a substantial limitation on a major life activity” and thus be covered under the act. (This is in 9 C.F.R. § 1630.2(j)(3)(ii).)

The regulation follows with an extensive list, which explicitly states “Human Immunodeficiency Virus (HIV) infection substantially limits immune function… major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia substantially limit brain function.… ” (This is in 29 C.F.R. § 1630.2(j)(3)(iii).) 

Even this expanded list is by no means exhaustive. The ADAAA mandates that employers, and courts, broadly interpret the term “disability.” (In 42 U.S.C. § 12102(4).)

HIV, along with the listed mental conditions, is the type of disability that may impact an employee’s performance but not be visible to the employer. Indeed, both the mental and physical health of a person with HIV may be exacerbated by a stressful work environment. Many loyal, or proud employees will do their best to suffer in silence. They may assume that their difficulty in coping with the disease and its associated treatments will be unfairly perceived as a performance deficiency. Many will fear stigmatization.

This silent suffering, of course, is often counterproductive. When an employer is not informed, they may perceive the employee’s demeanor as job dissatisfaction or poor performance. If an employee fears the stigma that may come from disclosing their HIV to the employer, the employee should at least consider informing the employer of the existence of a serious disability, without providing details (which is within the employee's rights).

Most importantly for people living with HIV, obtaining effective treatment does not prevent the employee from claiming a disability under the act. The ADAAA explicitly covers disabilities “without regard to the ameliorative effects of mitigating measures,” including medications, equipment, or even accommodations. (Reference 42 U.S.C. § 12102(4)(E).) This last point is critical, since the disease can be managed with an intensive course of treatment. The ADA allows for intermittent leave as an accommodation, provided it does not unduly disrupt the employer’s operations. This might be a few hours off per week for therapy or medical appointments, or more substantial, such as periodic days out of the office for treatment or convalescing.

Employers cannot accommodate a disability that has not been brought to their attention. Management may be quick to suggest that you “walk it off” and work without an accommodation, but this only worsens the working environment and the employee’s health — and it is illegal.  The employee can take steps to prevent this and obtain the necessary accommodation that will allow all parties to work constructively, productively, and in good health. (And remember if your employer doesn't behave within the law, you have legal options.)

Tom Harrington is principal of The Employment Law Group, a firm dedicated to championing civil rights in the workplace. R. Scott Oswald is a National Trial Lawyers’ Top 100 Trial Lawyer, and managing principal of The Employment Law Group; where he has litigated nearly fifty trials and recovered over $120 million in judgments and settlements in employment and whistleblower actions.

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Tom Harrington and R. Scott Oswald