This brochure is one of a series on human resources practices and workplace accommodations for persons with disabilities edited by Susanne M. Bruyère, Ph.D., CRC, Director, Employment and Disability Institute, Cornell University ILR School. This publication was written in 1994, updated in 2001 by a representative of the New York State Department of Health AIDS Institute and updated in February 2002 and May 2010 by Nellie J. Brown, M.S., CIH, Statewide Director, Workplace Health and Safety Program, New York State School of Industrial and Labor Relations, Cornell University

Brown, Nellie

New York State Department of Health AIDS Institute

English

DigitalCommons@ILR

	 W W W . H R T I P S . O R G 	 1A D V A N C I N G 	 T H E 	 W O R L D 	 O F 	 W O R K w w w . h r t i p s . o r g
Are HIV-Positive Persons or Those Diagnosed with AIDS Considered 
to Have a Disability?
Yes.  Those who are known or perceived to be infected with the human immu-
nodeficiency virus (HIV) meet the definition of disability under the Americans 
with Disabilities Act of 1990 (ADA), as amended by the ADA Amendments Act 
of 2008.  An individual with a disability under the ADA is an individual with 
a physical or mental impairment that substantially limits a major life activity.  
Before the Amendments Act was passed, the Supreme Court held that an indi-
vidual with asymptomatic HIV had a disability because she was substantially 
limited in the major life activity of reproduction.  The Amendments Act added 
immune system function to the list of bodily functions that are considered major 
life activities.  Therefore, persons who are HIV-positive or who are diagnosed 
with AIDS fall squarely within the definition of a disability under the ADA.  
What Can an Employer Ask About the Medical Condition of an HIV-
Positive Person?
Prior to making a job offer, employers may not ask job applicants about the 
existence, nature, or severity of a disability, nor may an employer require any ap-
plicant to undergo a medical examination.  Thus, an employer cannot ask appli-
cants if they have HIV infection, AIDS, or any opportunistic infection associated 
with AIDS.  Nor can an employer require any applicant to take an HIV antibody 
test because that is a medical examination.  However, employers may ask ap-
plicants about their ability to perform specific job functions, without reference to 
any disability. 
Working Effectively 
with Individuals who 
are HIV-Positive
2 	 Working	Effectively	with	Individuals	who	are	HIV-Positive
The ADA allows an employer to ask individu-
als whether they have HIV infection or AIDS 
only after the employer has extended a condi-
tional offer of employment.  However, ques-
tions must be asked of all individuals entering 
a job category, not just an individual suspected 
of HIV infection.  In addition, test results and 
medical history records must be segregated 
from personnel records and there are strict 
confidentiality requirements.  If a conditional 
job offer is withdrawn because of the results 
of such examination or inquiry, an employer 
must be able to show that:
• the reasons for the exclusion are job-relat-
ed and consistent with business necessity; 
and 
• there is no reasonable accommodation that 
will enable this individual to perform the 
essential functions; or 
• that any reasonable accommodation will 
impose an undue hardship.
A post-offer medical exam may disqualify a 
person on the basis that he or she poses a di-
rect threat to the health and safety of employ-
ees or others in the workplace. In determining 
whether the applicant or employee imposes 
a direct threat upon others, the employer’s 
decision must be objectively reasonable, based 
upon available medical evidence.  The em-
ployer also must determine that no reasonable 
accommodation would reduce or eliminate 
that direct threat.
Information that an individual is infected with 
HIV will rarely justify withdrawal of a job 
offer.  In most cases, HIV infection and AIDS 
will not interfere with the individual’s ability 
to perform essential job functions.  Moreover, 
the individual is entitled to a reasonable ac-
commodation to permit performance of es-
sential job functions.  Since the mere fact that 
an individual is infected with HIV almost 
never justifies revoking a job offer, employers 
may want to consider whether it is advisable 
to make such inquiries.  Similarly, employers 
may not want to conduct HIV testing because 
the results alone will not justify revocation of a 
job offer.   Asking current employees whether 
they have HIV infection or AIDS, or requiring 
employees to take an HIV antibody test, will 
rarely be permissible under the ADA, unless 
the employer can show that such inquiries or 
testing is job-related and consistent with the 
employer’s business necessity.  
What is Reasonable Accommodation?
The critical concept in the employment provi-
sions (Title I) of the ADA is that of “reasonable 
accommodation.”  Reasonable accommodation 
is any modification or adjustment to a job, an 
employment practice, or the work environ-
ment that makes it possible for a qualified 
individual with a disability to participate in 
and enjoy an equal employment opportunity.  
The employer’s obligation to provide a reason-
able accommodation applies to all aspects of 
employment, beginning with the application 
process; the duty is ongoing and may arise any 
time a person’s disability or job changes.  An 
employer is not required to provide an accom-
modation that will impose an undue hardship 
on the operation of the employer’s business.  
However, an employment opportunity cannot 
be denied to a qualified applicant or employee 
solely because of the need to provide reason-
able accommodation.
If the cost of the accommodation would im-
pose an undue hardship on the employer, 
the employer should determine if financial 
or technical assistance is available elsewhere, 
or the individual with a disability should be 
given the option of paying that portion of the 
cost that constitutes an undue hardship for the 
employer.
	 W W W . H R T I P S . O R G 	 3
Since estimates show as many as 1 in 250 
Americans is infected with HIV, accommoda-
tion in the workplace for infected individuals 
who can continue to work makes economic 
sense, as well as common sense.  The presence 
of these individuals in the workplace poses 
little or no threat of transmission, and their 
experience on the job is an asset to be retained. 
In addition, even those HIV-infected individu-
als who develop full-blown AIDS are able to 
remain productive members of the workforce 
for extended periods.  These working years are 
increasing due to new treatments being intro-
duced for HIV infection.  
What Types of Accommodations 
Should be Considered for HIV-Positive 
Employees?
It is helpful if employers have established 
policies on non-discrimination for persons 
with life-threatening illnesses.  These policies 
should emphasize that employees with illness-
es such as cancer, AIDS, and heart disease may 
wish and be able to work a regular or modi-
fied work schedule.  Most people infected with 
HIV do not show any symptoms of disease for 
many years after infection.  
If the HIV-positive employee eventually be-
comes unable to perform certain essential job 
functions, the employer must consider wheth-
er reasonable accommodation will permit him/
her to perform these functions.
Examples include:
• time to allow for medical appointments, 
treatment, and counseling;
• auxiliary aids and services, for example, 
large print for someone with AIDS who 
has developed a vision impairment; and
• additional unpaid leave. 
Which Employee Records Require 
Confidential Handling?
The ADA imposes very strict limitations on the 
use of information obtained from medical in-
quiries and examinations, including informa-
tion relating to a person’s HIV infection/AIDS.  
Employers must treat all such information as a 
confidential medical record.  They should col-
lect and maintain these records on forms and 
in medical files separate and apart from em-
ployee personnel files.  The medical informa-
tion cannot be shared with others, subject to 
the following five exceptions: sharing medical 
information with supervisors and managers 
about necessary restrictions on the worker, or 
duties of an employee, and necessary accom-
modations; performing first aid and informing 
safety personnel if the individual is in need of 
emergency medical treatment; sharing infor-
mation with government officials that are in-
vestigating compliance with the ADA or other 
federal or state disability discrimination laws; 
disclosing to state workers’ compensation of-
fices or “second injury” funds; and disclosing 
to insurance companies.
What if the Employer is Concerned 
that it May be Unsafe for the Person 
who is HIV Positive to Remain in the 
Workplace
As previously mentioned, the ADA does not 
require an employer to hire or retain an indi-
vidual whose disability poses a “direct threat” 
to the health or safety of employees and others 
in the workplace.  Direct threat means that an 
individual poses a significant risk of substan-
tial harm to employees or others, and covers 
concerns about transmission of infectious dis-
eases, including HIV infection.  A direct threat 
determination must be done on an individu-
alized basis, assessing the individual with a 
disability, her essential job functions, and the 
workplace.  The assessment of risk must also 
be based on current, objective medical or 
4 	 Working	Effectively	with	Individuals	who	are	HIV-Positive
other factual evidence.  A risk that is remote or 
speculative will not constitute a direct threat.  
If a direct threat is identified, the employer 
must determine whether a reasonable accom-
modation will eliminate or reduce the risk so 
that it is below the level of a direct threat.
Medical and public health authorities have 
established that HIV infection cannot be trans-
mitted through casual, social contact as exists 
in the vast majority of jobs and workplaces.  
Nor is HIV infection transmissible through 
food or food handling.  As a result, HIV infec-
tion in the workplace will rarely constitute a 
direct threat and thus can almost never be the 
basis for firing or refusing to hire an individu-
al with HIV infection.1  
An employer will violate the ADA if it treats a 
person with HIV infection or AIDS differently 
because of speculative concerns that the indi-
vidual may have an infectious, opportunistic, 
and communicable illness and may infect 
others.  The fact that a person has HIV infec-
tion or AIDS does not mean the person has, for 
example, tuberculosis or any other similar ill-
ness.  Thus, it would be discrimination for an 
employer to refuse to hire a person with HIV 
infection because of undocumented concerns 
that the person might have or might develop 
in the future one or more infectious diseases.  
This scenario does not pose a direct threat un-
der the ADA because it is based upon specula-
tion.  The employer has the burden of proving 
that an individual’s employment poses a direct 
threat, and it is important that appropriate 
1 Guidelines for management of healthcare work-
ers have been provided by the Society for Healthcare 
Epidemiology of American (SHEA).   These recom-
mendations can be found  in Henderson, D. et. al (2010, 
March).  SHEA guideline for management of healthcare 
workers who are infected with Hepatitis B virus, Hepa-
titis C Virus, and/or Human Immunodeficiency Virus.  
Infection Control and Hospital Epidemiology, 31(3).
medical or public health resources and exper-
tise be available to the employer to assist in 
making such accommodation decisions. 
A different scenario arises when an HIV-
positive employee works in an environment 
that poses a risk to his or her own health.  For 
example, a child-care worker with a compro-
mised immune system may consider tempo-
rary removal from exposure to children who 
have measles.  In such circumstances, there is 
no direct threat to the health or safety of oth-
ers in the workplace and so the direct threat 
defense to employment discrimination on the 
basis of disability is not available to the em-
ployer.
Does The ADA Affect the Employer’s 
Choice of Insurance Benefits Where 
Coverage of HIV-Positive Persons is 
Concerned?
Employees with HIV infection/AIDS must 
be given equal access to whatever insurance 
or benefit plans the employer provides.  An 
employer cannot fire or refuse to hire an indi-
vidual with HIV infection/AIDS because the 
individual may increase the employer’s future 
health care costs.  Similarly, an employer can-
not fire or refuse to hire an individual because 
the individual has a family member or depen-
dent with HIV infection/AIDS that may in-
crease the employer’s future health care costs.  
However, universal pre-existing condition 
clauses are permissible.
The EEOC has published guidance on health 
insurance plans that single out HIV infection, 
or any other disability for different treatments. 
Health plans that exclude coverage of HIV 
infection or place a lower cap on HIV as com-
pared with other disabilities may violate the 
ADA if the employer cannot justify the differ-
ences in coverage.
	 W W W . H R T I P S . O R G 	 5
Where Can I Find Resources to Assist 
in Accommodating the HIV-Positive 
Employee and Provide General 
Education on HIV to Our Workplace?
Workplace education, which emphasizes that 
HIV and AIDS are not transmitted by casual 
contact, may allow such an employee to be ac-
commodated within a supportive atmosphere.  
It will also serve to reassure co-workers that 
they are not at risk, and thus help preserve 
workforce productivity.  The following are 
some possible resources to assist in the design 
of training for supervisors and co-workers or 
in the identification of an accommodation for a 
particular individual.
The U.S. Department of Health and 
Human Services Centers for Disease 
Control and Prevention provides:
• National AIDS Hotline: (800) CDC-INFO 
or 888.232.6348 (TTY). Americans with 
Disabilities Act Information and Assis-
tance Hotline: 800.514.0301 or 800.514.0383 
(TTY). CDC Business and Labor Resource 
Service: 877.242.9760 or 800.243.7012 
(TTY). 
• Business Responds to AIDS Resource 
Service. Information, materials, and refer-
rals, for employers on national, state, and 
local, resources on HIV/AIDS in the work-
place.  Includes small-business guidelines, 
sample Workplace Policy on Life-Threat-
ening Diseases and Disabilities, informa-
tion on the Americans with Disabilities 
Act, workplace policy and education, 
and resources.  Call 800.458.5231 or visit       
www.brta-lrta.org.
Others:
ADA Disability and Business Technical 
Assistance Center Hotline - 
800.949.4232 (voice/TTY) 
National Leadership Coalition on AIDS, 
1730 M Street, NW, Suite 905, 
Washington, DC 20036, 202.429.0930
Job Accommodation Network: 
800.526.7234 (V) or 877.781.9403 (TTY)
Equal Employment Opportunity Commission
131 M Street, NE
Washington, DC 20507
To be connected to the nearest field office, call 
800.669.4000 (voice), 800.669.6820 (TTY). 
To order publications, call 800.669.3362 (voice), 
800.669.3302 (TTY). For online information: 
http://www.eeoc.gov
	 W W W . H R T I P S . O R G 	 7
About this Brochure
This brochure is one of a series on human 
resources practices and workplace accommo-
dations for persons with disabilities edited by 
Susanne M. Bruyère, Ph.D., CRC,  Director, 
Employment and Disability Institute, Cornell 
University ILR School. 
This publication was written in 1994, updated 
in 2001 by a representative of the New York 
State Department of Health AIDS Institute and 
updated in February 2002 and May 2010  by 
Nellie J. Brown, M.S., CIH, Statewide Director, 
Workplace Health and Safety Program, New 
York State School of Industrial and Labor Rela-
tions, Cornell University, 237 Main St. – Suite 
1200 Buffalo, New York 14203, 716.852.4191.
These updates, and the development of new 
brochures, were funded by Cornell, the Na-
tional ADA Center Network, and other sup-
porters.
The full text of this brochure, and others in 
this series, can be found at www.hrtips.org. 
More information on accessibility and accom-
modation is available from the ADA National 
Network at 800.949.4232 (voice/ TTY), 
www.adata.org.
Disclaimer
This material was produced by the Employment 
and Disability Institute in the Cornell University ILR 
School.   Development of the original brochure series 
was funded by a grant from the National Institute on 
Disability and Rehabilitation Research (NIDRR) (grant 
#H133D10155).   Content updates were funded by 
NIDRR grant number H133 A110020.  However, those 
contents do not necessarily represent the policy of the 
Department of Education, and you should not assume 
endorsement by the Federal Government.  
The U.S. Equal Employment Opportunity Commission 
has reviewed it for accuracy.  However, opinions about 
the Americans with Disabilities Act (ADA) expressed 
in this material are those of the author, and do not 
necessarily reflect the viewpoint of the Commission or 
the publisher.  EEOC interpretations of the ADA are 
reflected in its ADA regulations (29 CFR Part 1630), 
Technical Assistance Manual for Title I of the Act, and 
Enforcement Guidance.  
Cornell University is authorized by NIDRR to provide 
information, materials, and technical assistance to indi-
viduals and entities that are covered by the Americans 
with Disabilities Act (ADA).  You should be aware that 
NIDRR is not responsible for enforcement of the ADA.  
The information, materials, and/or technical assistance 
are intended solely as informal guidance, and are 
neither a determination of your legal rights or responsi-
bilities under the Act, nor binding on any agency with 
enforcement responsibility under the ADA.
The Equal Employment Opportunity Commission has 
issued enforcement guidance which provides ad-
ditional clarification of various elements of the Title 
I provisions under the ADA.  Copies of the guidance 
documents are available for viewing and downloading 
from the EEOC web site at: 
http://www.eeoc.gov
	 Working	Effectively	with	Individuals	who	are	HIV-Positive
Contact Information
Susanne M. Bruyère, Ph.D., CRC
Director, Employment and Disability Institute
Cornell University
ILR School
201 Dolgen Hall
Ithaca, New York 14853-3201
Voice: 607.255.7727
Fax: 607.255.2763
TTY: 607.255.2891
Email: smb23@cornell.edu
Web: www.edi.cornell.edu
To view all the brochures in this series, please visit:
www.hrtips.org


Working Effectively with Individuals who are HIV-Positive

This material was produced by the Employment and Disability Institute in the Cornell University ILR School. Development of the original brochure series was funded by a grant from the National Institute on Disability and Rehabilitation Research (NIDRR) (grant #H133D10155). Content updates were funded by NIDRR grant number H133 A110020. However, those contents do not necessarily represent the policy of the Department of Education, and you should not assume endorsement by the Federal Government.This brochure is one of a series on human resources practices and workplace accommodations for persons with disabilities edited by Susanne M. Bruyère, Ph.D., CRC, Director, Employment and Disability Institute, Cornell University ILR School. This publication was written in 1994, updated in 2001 by a representative of the New York State Department of Health AIDS Institute and updated in February 2002 and May 2010 by Nellie J. Brown, M.S., CIH, Statewide Director, Workplace Health and Safety Program, New York State School of Industrial and Labor Relations, Cornell University.A88_PDF.pdf: 494 downloads, before Oct. 1, 2020

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Working Effectively with Individuals who are HIV-Positive

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