EMPLOYMENT. What federal and state laws protect me at my job site?

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1 EMPLOYMENT In recent years, breakthroughs in treatment have allowed HIV-positive individuals to lead fulfilling lives with less severe symptoms. As a result, many people with HIV feel healthy enough to continue working. With this resurgence back into the work force comes a variety of legal questions related to HIV-positive employees. This chapter focuses on legal issues for HIVpositive individuals in the workplace. What federal and state laws protect me at my job site? Federal and state laws make it illegal to discriminate against HIV-positive employees or job applicants in Wisconsin. Both the Wisconsin Fair Employment Act (WFEA), 1 and the Americans with Disabilities Act (ADA), 2 prohibit employers from treating HIV-positive people unequally in employment matters. The ADA and the WFEA prohibit discrimination in any employment practice. This means that an employer cannot discriminate on the basis of disability when interviewing, hiring, assigning jobs, setting wages and benefits, promoting, and firing workers. 3 The ADA applies to employers with 15 or more employees. 4 The WFEA covers any entity, including the State, that employs at least one individual. 5 Legal remedies under the ADA and the WFEA include back pay, job reinstatement, hiring, promotion, and attorney s fees. 6 What is a disability under the ADA and the WFEA? You are considered disabled under the ADA if you have, or are suspected of having, a physical or mental impairment that substantially limits one or more major life activities. 7 Major life activities include working, caring for yourself, and having intimate sexual relations. 8 Although the United States Supreme Court did find HIV to be a disability in one case, 9 they did not rule that HIV is always a disability under the ADA. However, the Department of Justice has explicitly said it considers persons with HIV, both symptomatic and asymptomatic, to be disabled and thus protected by the ADA. 10 Under the WFEA, a disability is a real or perceived impairment that: (a) makes achievement unusually difficult or (b) limits the capacity to work. 11 AIDS and AIDS-Related Complex are construed as disabilities under the WFEA. 12 Though there has not been a ruling yet on whether HIV, especially asymptomatic HIV, is covered under the WFEA, the language and reasoning in a past case suggest both symptomatic and asymptomatic HIV would be covered under the WFEA. 13 NOTE: Social Security has its own separate process to determine if you are "disabled" for the purpose of receiving benefits such as Social Security Disability Insurance and Supplemental Security Income.

2 Can a potential employer ask or require me to take an HIV test or ask me if I am HIV-positive before I get the job? No, an employer cannot require you to take an HIV-test prior to hiring, 14 nor can they ask you about your status or whether you have any other disability. 15 You do not have to tell the employer that you are HIV positive. Can my boss require me to take an HIV test or disclose my status as a condition of employment? No, an employer cannot require an HIV-test or disclosure of status as a condition of employment. 16 Under certain circumstances, an employer may require that a person undergo a medical examination as a condition of employment. But an employer can require this exam only if a job offer has been made, and if all entering employees in that job category have to take the exam. 17 Furthermore, an employer can only require an examination if it is job-related and consistent with business necessity. 18 An HIV test could be a part of that exam. However, the employer cannot refuse to hire you based on the result of that HIV test, 19 unless you being HIV positive would pose a direct threat to the health and safety of others. 20 Because HIV is not transmitted in a typical workplace setting, mandated tests or disclosure is generally not allowed. Are there jobs I am not allowed to have because I'm HIV positive? Generally, no. To legally refuse you a job due to HIV, the employer must prove that, by carrying out the routine job duties of the position you applied for, you would pose a direct threat to the health and safety of others. Under the ADA and the WFEA, an employer must do an individualized assessment, using objective and reliable medical evidence, of the risk that substantial harm could occur in the workplace. 21 Because most routine job duties do not provide a significant risk of transmitting HIV to others, most employers cannot legally refuse you a job because you are HIV positive. 22 In situations in which employees are exposed to bodily fluids, such as in a health care setting, an employer should require everyone to use universal precautions to prevent against the transmission of all diseases. 23 What is a reasonable job accommodation? If an HIV-related medical condition impairs your ability to perform job-related duties, you can ask your employer to provide you with a reasonable job accommodation. A reasonable job accommodation is a modification or adjustment that allows a qualified, disabled employee to perform his or her essential job functions. 24 A qualified employee is one who can perform the essential functions of the job. An employer is required under the law to provide a reasonable job accommodation to a qualified employee unless the employer can prove that doing so would place an undue hardship on their business. 25 Examples of reasonable job accommodations include altering your work schedule, allowing you to keep your doctor appointments, or providing you with a cot in your office for rest. An employer may be required to provide you with an accommodation if it reasonable, does not pose a hardship, and doing so allows you to perform your job satisfactorily.

3 Issues tend to arise over what is a reasonable job accommodation and what is undue hardship, so if you have any questions related to this topic, contact a free legal services program listed in the Resources section of this publication for advice. Can an employer fire, dismiss, or refuse to promote me because I am HIVpositive or require a reasonable job accommodation? No. It is illegal for an employer to fire, dismiss, or refuse to promote you because you have HIV or require a reasonable accommodation. 26 Your employer must allow you to work as long as you are medically able. However, if you cannot perform the essential functions of your job, even with a reasonable job accommodation, your boss has a right to terminate you. 27 Therefore, it is a good idea to keep a written list of your essential job functions. Can my employer find out if I am HIV-positive if I do not personally disclose my status? Generally your employer will only find out about your HIV status if you tell him or her. However, an employer may have the opportunity to find out your status if you disclose it on the internet, such as on Facebook, or discuss it with others, such as coworkers. That is why it is important to be careful about where, when, and to whom you disclose your status. If you receive insurance through your employer, the health insurance company is prohibited from disclosing your status to your employer without your written consent. Disclosure without your consent is in violation of federal law. 28 However, insurance companies may release a claims history to your employer, which specifies the health conditions covered without disclosing the actual person with the ailment. If you work in a small office, your employer may figure out who has HIV from the claims history. Also, if you choose to participate in a group health care plan through your employer, the employer may ask you to fill out a medical history questionnaire for the health insurer. This questionnaire may ask you if you have been treated or diagnosed with AIDS or AIDS Related Complex (ARC). It may not ask you if you have received a positive test result for HIV. Do I need to disclose my HIV status to my employer? No. However, if you are seeking a reasonable job accommodation, you must inform your employer that you are disabled. Whether you choose to disclose your actual disability is a personal choice, but in some situations, it may be easier to get the modification you need if you inform your employer of your status. You might be able to avoid disclosing your HIV status by instead disclosing the overlying condition that you have (for example, fatigue). It will be helpful to get a doctor's note verifying your condition. Will my HIV status be kept confidential if it is disclosed to my employer? Under the ADA, medical examination information must be kept confidential. Medical files must be kept separately from regular personnel records, and are only available in limited

4 circumstances. 29 However, employers are not covered entities under the Health Insurance Portability and Accountability Act. Can my company deny me insurance coverage because I'm HIV positive? No. If your company has a group insurance plan, you must be accepted onto the plan, whether you are HIV positive or not. 30 Preexisting condition exclusions may apply, though they cannot last longer than 12 months (or 18 months if you are a late enrollee). Keep in mind that employers may choose not to offer insurance to anyone. If I have to disclose my HIV status on my insurance application, how can I prevent my employer from seeing it? Sometimes an employer will tell you to turn your insurance application in to the human resources department, which will then send the application to the insurance company. You could ask the human resources department if you can send your application in directly to the insurance company yourself, explaining that you would prefer not to give confidential health information to your employer. What is the Family and Medical Leave Act? The Family and Medical Leave Act (FMLA) 31 is a federal law that might allow you to take up to 12 weeks of unpaid sick leave each year from work. The FMLA only applies to employers with 50 or more employees. 32 To be eligible for FMLA leave, you must have worked at your job for at least 25 hours a week for at least 12 months. 33 FMLA leave requires a serious health condition, 34 which means a physical or mental condition that requires you to be hospitalized or to get continuing treatment from a doctor. 35 Most people with symptomatic HIV will have a serious health condition. During FMLA leave, your company must continue to pay its share of your health insurance premium. 36 However, your employer is not required to pay you for the time you are not working. Leave does not have to be taken all at once. 37 For instance, if it is medically necessary, you could take off several days per month for doctor visits. Your employer cannot retaliate against you for taking FMLA time off that you are entitled to. 38 The Wisconsin Family and Medical Leave Act (WFMLA) also applies to employers with 50 or more employees, 39 but it only allows for up to two weeks of unpaid sick leave each year for an employee s serious health condition. 40 It also allows an employee to take up to two weeks to care for a domestic partner or the parent of a domestic partner. 41 The WFMLA applies to employees who have been employed by the same employer for more than one year and who have worked for the employer for at least 1,000 hours during the preceding year. 42 Just as with the FMLA, your employer cannot retaliate against you for taking off WFMLA time to which you re entitled. 43

5 NOTE: If you believe your employer has violated your WFMLA rights, you have only 30 days to file a complaint with the Wisconsin Department of Workforce Development. 44 Do I have to disclose my HIV status to get FMLA leave? Much like getting a reasonable accommodation, you may need to disclose your HIV status to get FMLA leave. An employer can require a note from your doctor to prove that you have a serious health condition. 45 As with a reasonable accommodation, you can try to avoid disclosing your HIV status by instead disclosing the overlying condition (e.g. fatigue). If you do disclose your HIV status, you may want to remind your employer that your status should be kept confidential. 1 WIS. STAT U.S.C U.S.C ; Wis. Stat , U.S.C (5)(A) 5 WIS. STAT (6)(a) 6 42 U.S.C. 2000e-5(5)(g)(1) and (k); WIS. STAT (4)(c) 7 42 U.S.C (1) 8 42 U.S.C.A (2) 9 Bragdon v. Abbott, 524 U.S. 624 (1998) 10 US DOJ, Civil Rights Division publication entitled: Questions and Answers: The Americans with Disabilities Act and Persons with HIV/AIDS, available at 11 WIS. STAT (8). 12 See Racine Unified Sch. Dist. v. LIRC, 164 Wis.2d 567, , 476 N.W.2d 707 (Ct. App. 1991). 13 Id. 14 WIS. STAT (2)(a) U.S.C (d)(2)(A). 16 WIS. STAT (2)(a) U.S.C (d)(3) U.S.C (d)(4) U.S.C (d)(3)(C); WIS. STAT (2)(b) U.S.C ; WIS. STAT (2). 21 WIS. STAT (2)(b); See US DOJ, Questions and Answers: The Americans with Disabilities Act and Persons with HIV/AIDS. 22 WIS. STAT ; See US DOJ, Questions and Answers: The Americans with Disabilities Act and Persons with HIV/AIDS. 23 See WIS. STAT (1)(fm) and (5g)(b).

6 24 42 U.S.C (9) U.S.C (b)(5)(A); WIS. STAT (1)(b) U.S.C (b)(5)(B) U.S.C (8). 28 See U.S.C.A (d)(3)(B). 30 WIS. STAT (2)(b)-(c) U.S.C. 2601, et seq U.S.C. 2611(3) U.S.C. 2611(2)(A) U.S.C. 2612(a)(1)(D) U.S.C. 2611(11) U.S.C. 2614(c) U.S.C. 2612(b)(1) U.S.C Wis. Stat (1)(c). 40 Wis. Stat (4)(b) 41 Wis. Stat (3). 42 Wis. Stat (2)(c). 43 Wis. Stat (11)(c). 44 Wis. Stat (12)(b) U.S.C

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