Drug Testing & Medication Disclosure
An applicant or employee does not need to disclose the medications they take to their employer. Also, an employer is not permitted to ask questions about the medication or medications an applicant or employee is taking. If the results of a drug test reveal the presence of a lawfully prescribed drug or other medical information, such information must be treated as a confidential medical record. If the results reveal the presence of an illegal drug, an applicant or employee must be given an opportunity to explain a positive result such as lawful use of a controlled substance or other treatment that might cause a false positive test result.
My Employer is asking about my Health- Your Right to Privacy
People living with HIV continue to report high rates of stigma which makes it particularly important to carefully consider disclosure at your workplace. The good news is that you generally DO NOT have to disclose your personal health information, including your HIV serostatus, at work. In nearly all situations, an employer CANNOT ask you about your HIV either before or during employment. However, they may ask you general medical questions in the following situations:
- When they are engaging in affirmative action for people with disabilities, in which case you can choose whether or not to identify as a person with a disability.
- When you are asking for a reasonable accommodation.
- After a job offer, but before employment, if all job applicants are asked the same question.
- On the job, when there is objective evidence that you cannot do your job or that your condition poses a safety risk. However, your employer cannot rely on myths or stereotypes when deciding what you can safely do.
- When you wish to establish eligibility for Family and Medical Leave.
Nonetheless, employees often feel pressured by their supervisors to disclose, particularly if they have frequent doctor’s appointments or sick days and they feel compelled to explain their absences. Or sometimes folks who are newly diagnosed want to share the information with friends at work, which is completely understandable. Just REMEMBER IT IS NOT REQUIRED. YOU HAVE A LEGAL RIGHT TO HEALTHCARE PRIVACY AND TO NOT DISCLOSE YOU ARE LIVING WITH HIV.
If you do decide to disclose, it is very important to carefully consider to whom you share this information with. Co-workers, even friends, unfortunately do not always respond with empathy and support. In addition, once an employee discloses to one person, it is not uncommon for the information to be shared with others. This in turn, can lead to outright discrimination and harassment or perceptions of being treated differently.
Unintentional disclosure can occur if you work for a small employer that is self-insured (this is when the employer pays for employee medical expenses, usually through a third party administrator, rather than use an insurance company) since it is possible they will be more aware of your healthcare usage and other information. Nonetheless, the law requires that employee medical records be maintained with confidentiality, with controls in place and stored separate from an employee's general personnel file. This includes employee medical exams, disability benefits claim forms, or any other disability related documentation.
Disclosure issues also come up in the context of workplace accommodations. See below for further information on Reasonable Accommodations.
For more information on your right to workplace privacy:
Healthcare workers living with HIV are protected by the same privacy laws as employees in other industries. The Center for Disease Control issued guidelines about testing and disclosure of healthcare workers and determined with the use of universal precautions, there is very low risk of transmission from the provider and mandatory testing and disclosure were not necessary.
More information -
Harassment after disclosure
Under state and federal laws, harassment based on a disability is not allowed in the workplace. If this harassment is so frequent or severe that it creates a hostile work environment, it is illegal. If you report this to your employer, they are legally required to take action to stop it from happening in the future.
For more information https://www.lambdalegal.org/know-your-rights/article/workplace-hiv-discrimination
Requesting a Reasonable Accommodation at Work
A reasonable accommodation is any change to a job, the work environment, or the way things are usually done that allows an individual with a disability to apply for a job, perform job functions, or enjoy equal access to benefits available to other individuals in the workplace. “Qualified” individuals with disabilities have the right to request reasonable accommodations under the Americans with Disabilities Act or ADA (at workplaces with 15 or more employees) or the Fair Employment and Housing Act or FEHA (at workplaces with 5 or more employees). HIV, even when asymptomatic, is considered a disability under the ADA and FEHA. Therefore, a person with HIV is “qualified” if they are able to perform the essential functions of the job with or without reasonable accommodations.
There is a LOT of information available about reasonable accommodations and we’ve provided several links below. Keep in mind this is an interactive process where you need to engage your employer in a discussion about what you need and are seeking so that you can stay employed and perform the duties of your position. In short, you need to make the ask and not assume your employer will approach you with ideas.
Who: Request accommodations from the Human Resources Department or your supervisor.
What to disclose: Simply state orally or in writing that you “need an adjustment or accommodation at work because of a medical condition.” Upon notification of your need for an accommodation, your employer is required to begin the “interactive accommodations” process with you. This means your employer must work with you to determine an appropriate accommodation. However, you can help make the process go quicker, if you approach your employer with ideas of accommodations at the same time as you notify them of your need.
You do NOT have to disclose that you are HIV+ even when you are seeking an accommodation. However, your employer can require that you provide a doctor’s note stating you have a disability and explaining your limitations, if they are not apparent to your employer.
Helpful source of information can be found here https://www.ada.gov/hiv/ada_qa_hiv.htm
When: You can make the request at any time, but if you are struggling at work, DON’T WAIT. For instance, if you have been out sick a lot lately and have exceeded the annual limit for sick time, DON’T WAIT until you get written up. Try to be proactive and see if you can adjust your schedule as a reasonable accommodation.
To learn more about how to request a reasonable accommodation, click HERE.
Examples of Reasonable Accommodations in the Workplace: air purifier, fan, flexible schedule, medical leave, standing desk, support animal, support person, working from home.
For more examples of common accommodations for persons living with HIV, click HERE.
YOU MIGHT WANT TO SEEK LEGAL COUNSEL SPECIFIC TO YOUR SITUATION BEFORE YOU PROCEED WITH A REQUEST FOR ACCOMMODATION.
Taking Time Off
When you need to take time off from work for your medical appointments, meet with a representative of human resources or your supervisor and explain that you see your doctor regularly (for example, once every two months) to monitor your health. In some cases, your employer may be accommodating without any further action on your part. However, if your employer questions your need to keep regular medical appointments, you may be able to receive a modified schedule as a reasonable accommodation under the Americans with Disabilities Act (see question and answer directly above).
THE CONTENT FOUND HERE WAS CURRENT AT THE TIME OF WRITING (January 2021). LAWS AND LEGAL PROCEDURES ARE SUBJECT TO FREQUENT CHANGE AND DIFFERING INTERPRETATIONS. YOU SHOULD SEEK THE COUNSEL OF AN ATTORNEY TO RECEIVE LEGAL ADVICE SPECIFIC TO YOUR SITUATION.