HIV/AIDS and Employment - Your Legal Rights

Despite federal and state laws protecting persons with HIV/AIDS from discrimination, the unfortunate fact is that such discrimination continues to take place.  The most important thing to remember is:  Discrimination against someone with HIV/AIDS is illegal!!!    If you have HIV?AIDS, you are protected from discrimination by federal law, including the Amercans with Disabilities Act (ADA), as well as by Florida law.


Applying for a Job

The Americans with Disabilities Act protects job applicants by making sure that an employer can only ask an applicant certain things.  Employers can ask you about whether or not you can do the job.  They can ask you about

  • other jobs you have had
  • whether or not you can physically do the job for which you are applying
  • why you may not have had a job at certain times.  If you were out of work in the past because of a disability, but now you can work again, the employer cannot use your past disability to disciminate against you now.

Employers cannot ask you anything to directly try to find out if you have HIV/AIDS or any other disability.  Such questions include:

  • whether or not you have HIV/AIDS
  • whether you have been hospitalized for an illness in the past
  • whether you are in good health, and whether you think you might get sick in the future
  • An employer can only ask you about a disability if they are trying to make it easier for you to work, not if they are trying to discriminate against you.

Even if your employer somehow finds out that you have HIV/AIDS, they cannot use this information against you, nor can they tell anyone else you have HIV/AIDS.

If an employer has offered you a job they can, under certain conditions, ask you to take a medical test to see if you can do the job.  An employer can never ask you to take such an exam before offering you a job.  Also, an employer can only ask you to take an HIV test if having HIV/AIDS could create a very harmful situation in the workplace.  Usually, having HIV/AIDS wouldn't matter, so few employers will make someone take an HIV test.

If an employer makes you take an HIV test, they need to follow these rules:

  • Everyone applying for the same job has to take the same test.
  • The employer can't tell anyone else about the results of the test.  Telling someone else is illegal.
  • Any information the employer gets from the tests cannot be used to discriminate against you.


Remember: Discrimination against a person with HIV/AIDS is illegal!
Also, if someone discriminates against you because they think you have HIV/AIDS (whether you do or not), that is also illegal.  Not only is it illegal to discriminate against someone with HIV/AIDS, but employers may also not pay you less or deny you promotions or raises based on your HIV/AIDS status.


BENEFITS - Insurance

If your employer offers health insurance to all employees, then you should also get health insurance even if you have HIV/AIDS.  Your health insurance company may exclude a pre-existing condition from coverage in some circumstances.  This means that the insurance company may not have to cover your HIV/AIDS treatment costs.

However, even if you already have HIV/AIDS, the insurance company may still have to pay for your medical treatment.  If you had health insurance for at least twelve continuous months before your new employer's health policy starts, and there was not a gap greater than 63 days between your old health insurance and your new employer's policy, then your new health insurance must pay for your treatment. 


FAMILY LEAVE

If you work for an employer who has 50 or more employees, and you become ill or need to take care of someone who is ill (including someone with HIV/AIDS), you can take up to 12 weeks of unpaid leave during each 12-month period according to the Family Medical Leave Act (FMLA).  This means that upon returning from this leave you should be allowed to have your old job, and should be paid the same.  Also, you don't need to take all 12 weeks off at the same time, you can break up the 12 weeks in any way.  If you need to you might be able to get even more time off from work according to the ADA.

To get time off under the FMLA, you might be required to tell your or someone else's HIV status to your employer.  If you do so, your employer is legally bound not to tell anyone about your HIV status.  If they do tell someone else, they are breaking the law.