There are laws that prevent people with HIV from being fired or refused a job, but unfortunately, these laws don't protect all HIV-positive people every time. Here's why there's no simple answer: Anti-discrimination laws protect people who are disabled from job discrimination. It is up to courts to decide whether a person qualifies as disabled, and therefore entitled to protection from job discrimination. While courts have often ruled that HIV is a disability, they have not ruled this way in all cases.

Adding to the confusion, there may be a number of laws-local, state, and federal-offering you protections against job discrimination. The Americans with Disabilities Act (ADA) is a federal law protecting people with disabilities from job discrimination nationwide. However, some employers do not have to follow the ADA. (Information about what employers are covered by the ADA is given below.) On the other hand, some areas have state or local laws that offer protections to disabled people beyond what the ADA covers. Some of these state or local laws specifically cover people with HIV. To find out about the laws in your area, contact your local human rights commission, your local HIV service organization, a local attorney, or contact us.

What is "discrimination"?

Discrimination is when you are treated differently from other people because you have HIV. Discrimination can take many forms including being fired, not getting a promotion you deserve, being transferred to a position with lesser responsibilities, being harassed by your supervisor or co-workers, or not being hired for a job for which you're qualified.

How do I know if I am protected by anti-discrimination laws?

In thinking about this, first get rid of any idea in your mind about what "disability" means. What matters here is what the courts and the law say "disability" means.

Under the ADA, "disability" means having a medical condition that "substantially limits a major life activity." In other words, if your HIV seriously affects a "major life activity" like walking, talking, breathing, sleeping, eating, or working in a broad range of jobs, you're protected by the ADA. If HIV or your medications are really impairing one of these activities, the odds are you are covered. Even if you don't feel sick, you may be covered because of other ways HIV affects your life. For example, many people are considered disabled because having HIV limits their ability to have kids. Some states and towns have nondiscrimination laws with broader definitions of disability. In Illinois and New York, for example, state disability nondiscrimination law covers people with HIV in all cases, regardless of the severity of their condition.

Do these laws apply to all employers?

The ADA says any private business or state and local government employer with more than 15 employees cannot discriminate against people with disabilities. Other state or local laws in your area may cover even smaller businesses. The Rehabilitation Act of 1974 bans federally funded employers from discriminating against people with disabilities.

What should I do if I think my boss is discriminating against me?

If you think your employer is treating you differently because you have HIV, keep good records of what's going on. If your employer gave you anything in writing that backs up what you say, make sure you keep it in a safe place.

Keep cool and continue to do your job. Obey all company rules and avoid getting into disputes with your employer. You do not want to give your boss an excuse to blame the discrimination on you by saying you were insubordinate or disruptive.

Contact a local HIV service organization for a referral to a local attorney who can help you or find an employment lawyer through www.nela.org. You can also contact us.

Pursuing a discrimination claim is a complicated matter, so getting good advice at the outset is important. Under many laws, you need to bring a discrimination claim within a short period of time after the discrimination occurs, so talk with a lawyer quickly if you feel you've been discriminated against.

Can my employer ask if I have HIV or make me take a test?

If you're applying for a job, an employer cannot ask about your health until you are offered a job. The only questions you can be asked in an interview must be related to your ability to do the job you're applying for.

However, once you've been offered a job but before you start work, an employer can make you take a general medical exam. The exam must be the same for all new employees, but it may include questions that would disclose the fact that you have HIV, such as whether you have any illnesses and what medications you take. If you are in this situation, it is important to answer all questions honestly. In many situations, you may be able to sue the employer if he changes his mind and takes back the job offer once he learns you have HIV. But lying to the medical examiner gives the employer a valid reason to take back the offer.

If you've been offered the job or have already been doing the job for a while, your employer can ask if you have HIV or require you to take an HIV test, but only if your HIV status is relevant to whether you can safely do the job.

An employer cannot refuse to hire you-or decide to fire you-because of worries about higher employee health insurance costs or the possibility you will need to take medical leave if you become sick.

Can my employer make me get a general medical exam?

Yes, but not until you've actually been offered a job and only if your employer requires everyone to take the exam. Your employer can't decide not to hire you, or to fire you, because of your HIV status unless HIV makes you unable to do the job or makes you a significant health threat to others. The health threat must be a real threat, not just based on the employer's fears about HIV.

Does my employer have to keep my HIV status confidential?

It depends. Some states have laws that prohibit employers from telling anyone about an employee's medical condition. In other states, however, it may be more difficult to do anything legally if your boss gossips about your HIV status. It is always a good idea no matter where you live to tell your employer to keep your medical information confidential. Many employers understand the importance of keeping medical information confidential, and many believe that they can get in trouble for any unauthorized disclosure.

Employers do have an obligation to keep your actual medical files confidential.

Can my employer put restrictions on what I do at work?

The ADA says yes, but only if those restrictions are based on science. An employer cannot restrict a person with HIV from doing his or her job because of irrational fears about infecting others or worries about making other people uncomfortable. For example, there's no medical evidence that one can get HIV simply by eating food handled by a person with HIV, so if one part of your job involves handling food, you can't be prevented from doing that work because your employer fears you will infect someone.

What if I need some flexibility to do my job?

The law says that if a disabled worker can do the basic parts of a job, his or her employer must "accommodate" the disability to allow the worker to do the job. What this means, however, depends on the facts of your situation, including the size and type of business you work for, the kind of job you're doing, and the type of accommodation you need.

For example, if having HIV requires you to have flexible work hours, your employer probably will have to give you this flexibility if the company has enough staff to cover you. If, however, you're working for a small company and you're the only person doing a certain job, allowing you to have a different work schedule from others may make doing business very difficult. In that situation, your employer does not have to give you the flexibility you need.

Remember, you cannot expect your company to accommodate your disability if you don't tell them you need their help. Once you've asked for an accommodation, they must work with you to figure out what you need in order to continue doing your job. Your boss can't penalize you for asking for an accommodation.

Do I have to tell my employer that I have HIV if I'm asking for an accommodation?

Not necessarily. You may be able to explain that you need an accommodation because you have a disabling condition (such as fatigue), without being more specific. Sometimes, all your employer will need is a letter from your doctor explaining that you suffer from a "chronic condition" that causes you to need the accommodation you're requesting, without saying that it's HIV.

What if I'm so sick that I can't do my job?

Disability anti-discrimination laws do not protect you. Under the ADA, your employer can't discriminate against you so long as you're well enough to go to work regularly and do the basic parts of your job, but the ADA does not protect you when you cannot do your job. The federal Family Medical Leave Act (FMLA), however, might help you keep your job for a while. If you can't work, you should consider applying for disability benefits through private insurance if you have it, or through Social Security. Contact your local HIV services provider for more information.

What if I'm HIV negative but have a positive partner? Do I have any protection against discrimination?

Yes. The law says you can't be discriminated against because you have a friend, partner, or family member with HIV. However, the ADA does not require your employer to make special arrangements to allow you to care for your ill family member. Still, if your company gives its workers unpaid leave for personal or family reasons, it can't prohibit you from using unpaid leave to care for a person with HIV. The FMLA, moreover, may allow you to take time off to care for a sick family member. (Unfortunately, however, same-sex partners are not considered legal family members under the federal FMLA.)

If you believe that you have been fired, refused a job or been discriminated against in some other way in the workplace, we want to hear from you. Please click here to report discrimination, or call us at 212-549-2627.