Legal Protection from
Job Discrimination
Federal and state laws protect people with disabilities — including people living with HIV — from discrimination in many aspects of employment, such as hiring, promotions, job assignments, benefits, and termination.
Key federal laws include:
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The Americans with Disabilities Act of 1990
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The Family and Medical Leave Act of 1993
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The Rehabilitation Act of 1973
The Americans with Disabilities Act (ADA)
The Americans with Disabilities Act (ADA) is a federal civil rights law that protects people with disabilities from discrimination in employment and other areas of public life. The law generally applies to employers with 15 or more employees, including private businesses, nonprofits, labor organizations, and public agencies.
In cases where the ADA does not apply, state law may apply.
Under the ADA, employers may not discriminate against a qualified employee or job applicant because of a disability, including HIV. The ADA also prohibits discrimination against someone because a family member or someone they have a relationship with has, or is perceived to have, a disability.
Disability Under the ADA
A disability is generally defined as a physical or mental condition that substantially limits one or more major life activities, such as: seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, working, or caring for oneself.
However, people living with HIV are recognized as having a protected disability under the ADA, whether or not symptoms are present.
Qualified Employee
To receive protection under the ADA, an individual must be qualified for the job. This means they meet the basic requirements for the position — such as education, skills, and experience — and can perform the essential functions of the job with or without a reasonable accommodation.
Hiring and Job Interviews
During the hiring process, employers may:
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Ask whether you can perform essential job duties with or without reasonable accommodation
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Require a medical exam after a job offer is made, if required for all employees in the same position
Employers may not:
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Ask whether you have a disability before making a job offer
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Ask about your immune status or HIV status
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Require HIV testing before offering employment
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Reject a qualified applicant solely because a reasonable accommodation might be needed
Reasonable Accommodation
A reasonable accommodation is a change to a job, work schedule, or work environment that helps a qualified employee perform their job. Employers are required to provide accommodations unless doing so would cause significant difficulty or expense for the organization.
Examples might include flexible scheduling, adjustments to duties or workload, time off for medical care, or modified workspaces or tasks.
Medical Records and Confidentiality
Employers must keep employee medical information confidential. Medical records must be stored separately from personnel files and only shared with individuals who need the information for legitimate work-related reasons.
Enforcement
The federal Equal Employment Opportunity Commission (EEOC) enforces employment provisions of the ADA. The Department of Justice enforces other ADA provisions.
Note: There are strict deadlines for filing discrimination complaints — often 180 or 300 days depending on the state.
The Family and Medical Leave Act of 1993 (FMLA)
The FMLA allows eligible employees to take up to 12 weeks of unpaid, job-protected leave per year for certain family or medical reasons. In general, FMLA applies to employers with 50 or more employees, and employees must meet certain work history requirements (including 12 months of employment and 1,250 hours worked).
Covered reasons for leave include:
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A serious health condition affecting your ability to work
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Caring for a spouse, child, or parent with a serious health condition
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The birth or adoption of a child, or bringing a child from foster care
During FMLA leave, employers must continue group health insurance coverage under the same conditions as if the employee were working.
When employees return to work, they usually have the right to return to the same job or a similar job with the same pay and benefits. If you are no longer able to perform an essential function of the job, reinstatement is not required unless a reasonable accommodation would enable you to do the job.
Further resources:
Equal Employment Opportunity Commission:
Phone: (800) 669-4000 or (800) 669-6820 (TTY)
Americans with Disabilities Act — employment guide:
www.ada.gov/resources/employment-seeking-guide/
ADA Information Line: (800) 514-0301 or (800) 514-0383 (TTY)
Department of Labor — FMLA:
www.dol.gov/agencies/whd/fmla/
DOL ODEP (disability employment policy):
The Rehabilitation Act of 1973
The Rehabilitation Act of 1973 prohibits federal agencies, federal contractors, and organizations receiving federal funding from discriminating against people with disabilities in employment. Like the ADA, it requires covered employers to provide reasonable accommodations to qualified employees with disabilities.
The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing the Rehabilitation Act.