Tuesday, March 3, 2015

HIV-Positive Employees

In a statement that would have seemed unbelievable 15 years ago, many in the medical community have declared that AIDS has become a chronic disease, and not an acute one. With the effectiveness and availability of anti-HIV medication steadily increasing, HIV-positive individuals are living long, healthy, and productive lives. This is unequivocally good news. However, it also means that there are more HIV-positive employees than ever before. As a result, employers should be familiar with the AIDS Confidentiality Act, which governs the treatment of HIV-positive employees (410 ILCS 305/1, et seq.).

The Act, passed to combat discrimination against HIV-positive employees and encourage HIV testing, prohibits an employer from disclosing that an employee has taken an HIV test, and also prohibits the disclosure of the results of this HIV test. 

Moreover, the Act prevents an employer from compelling an employee to disclose HIV-related information. This includes whether the employee has taken an HIV-test, and the results of that test. An employer can, however, disclose that it has HIV-positive employees, as long as it does not identify who that employee is.

Penalties for violating the Act are severe. If an employer engages in the unauthorized disclosure of AIDS-related information, the employee will recover at least $2,000 worth of damages for each violation. If the employer discloses this information to purposefully harm the employee, the employee can recover at least $10,000 worth of damages for each violation. 

Employers should also remember that the Americans with Disabilities Act prohibits them from treating an employee differently because he is HIV-positive. Moreover, the Act requires employers to take reasonable measures to allow the HIV-positive employee to work, like breaks to allow the employee to take medication.

Furthermore, medical privacy laws like HIPAA prevent employers from disclosing an employee’s medical condition without that employee’s consent. This means that employers should not disclose that an employee is HIV-positive before expressly receiving that employee’s consent. 

Ultimately, employers must take great care to respect employee privacy regarding medical information. Disclosing medical information about an employee without that employee’s consent might subject that employer to fines, penalties, and lawsuits.