In 1998, the Supreme Court issued its first ruling on an AIDS-related issue and its first major interpretation of the Americans with Disabilities Act. The justices made it clear that all persons who are HIV-positive, even though they may show no overt symptoms of the disease, are protected under the ADA. Bragdon v. Abbott, 524 U.S. 624 (1998)
Lower courts had long held that people infected with full-blown AIDS are protected by the ADA. Since the Supreme Court ruling, employers must afford the same protection to workers or applicants who are HIV-positive but show no outward signs of the infection.
Note: According to the Centers for Disease Control and Prevention, one in 16 employers with 50 or fewer employees, as well as one in six large employers, has “experienced” an employee who is HIV-positive or has AIDS.
Caution: The ADA prevents you from asking workers about their HIV status or what medications they are taking. It's also illegal to deny a job or health insurance to applicants because they are HIV-positive.
Your best bet: Avoid even the appearance of discrimination. Follow these guidelines:
- If your insurance pool requires blood tests for classifying covered employees, have everyone take the same test. Then make sure that managers who are making hiring decisions don’t have access to test results.
- Don’t ask medical questions during interviews. If an applicant volunteers that she is HIV-positive, just say, “We don’t need to discuss that at this time.”
- Keep medical records private, and store them away from regular personnel files.
- Establish a company policy on HIV and AIDS. Educate employees about HIV transmission.
- Consult an attorney before making any employment decision related to HIV or AIDS.
- Provide real chance to weigh signing separation agreement
- Keep thorough records of skills-testing processes and results to counter claims of bias
- 'Zip It' Doesn't Work When Firing Employees
- Warn managers: no 'one-sided' socializing
- Helping worker dodge jury duty with medical excuse doesn't amount to disability