Increasing Employment Opportunities for those Living with HIV
By Allison Nichol, Co-Director, Center for HIV Law & Policy (CHLP)
CHLP Co-Director Allison Nichol blogs about two important new publications from the Equal Employment Opportunity Commission that serve as guides to the rights of people living with HIV in an employment context.
Many in the HIV advocacy community would agree that the persistent stigma attached to HIV is, in and of itself, a public health issue. Fear of being stigmatized or being subjected to discrimination can be a powerful force in dissuading people from seeking testing and starting and remaining in treatment. This fear of stigma, rejection, and disclosure leads some to remain under or unemployed. This is particularly true of those who have been unemployed for a long period of time due to their HIV or another disability. The prospect of having to explain a long disability-related gap in employment either on a resume or in an interview can increase the stress of an already daunting return to work process. In addition, some employees with HIV will remain underemployed or fail to request a needed accommodation or change in their work environment because they fear the consequences of what they believe will be required in disclosure of their HIV status in the workplace. At a time when so many people with HIV can and desire to re-attach or remain attached to the workforce and when simple accommodations can allow individuals with HIV to continue to thrive and succeed in the workplace alongside their HIV-negative peers, a fundamental understanding of the rights and responsibilities of those with HIV and their employers is more important than ever.
On December 1, 2015, the Equal Employment Opportunity Commission (EEOC or the Commission) published two important and enormously helpful documents related to individuals with HIV in the workplace. The first, Living with HIV Infection: Your Legal Rights in the Workplace under the ADA, outlines in straightforward non-legalise language, the basic rules of the road with respect to how the medical condition of HIV is treated under the Americans with Disabilities Act (ADA), the primary federal law designed to protect people with HIV and other disabilities in the workplace. The guidance makes clear that an employer’s ability to inquire about any medical condition of an applicant or employee is extremely limited to a highly specific set of circumstances. It also makes clear that people with HIV can make requests for accommodations at their job, and, although employers can ask for documentation of their medical condition and the need for the requested accommodation, it may be sufficient to submit documentation that the employee has an “immune disorder” rather than the more specific HIV. Finally, it addresses the “resume gap” question by clarifying that a prospective employer can legally ask every applicant to explain a gap in employment and reminds applicants that they cannot be discriminated against for having a disability or a history of a disability and any information the employer gains during the interview related to the applicant’s disability must be keep confidential. Finally, it reminds us that workplace harassment on the basis of HIV or other disability is also illegal.
The second guidance, Helping Patients with HIV Infection Who Need Accommodations at Work, is just the kind of practical advice needed both by workers and by their health care providers. Even under the best health insurance plans, the amount of time we are allowed to spend with our doctors is limited, often rushed, and impersonal or worse, lacking in cultural competence. That, in combination with a doctor’s natural aversion to becoming involved in anything that looks remotely like it might involve lawyers, can make asking your medical provider for documentation to support your accommodation request at work more than intimidating. One of the many strengths of the Commission is its ability to produce documents like this one that really serve as a step by step guide that both answers the most likely questions a doctor will have about his or her role in the reasonable accommodation process and sets out the exact information that should be contained in the medical documentation so that it will properly support the request for accommodation. Hopefully, this document will see wide distribution, including among medical care providers and social service agencies that serve the community of those with the medical condition of HIV.
Living with HIV Infection: Your Legal Rights in the Workplace under the ADA
Helping Patients with HIV Infection Who Need Accommodations at Work
What You Should Know About HIV/AIDS & Employment Discrimination
for People Living with or at Greater Risk for HIV
Poverty, unemployment, and underemployment are key social and economic determinants of health, and critically influence outcomes across the HIV care continuum. The employment provisions of the National HIV/AIDS Strategy: Updated to 2020 will require definition of measurable objectives and timelines established for Federal agency activities, to a) prevent unnecessary loss of employment, and (b) reduce poverty, unemployment and underemployment among people living with and at higher risk for HIV.
There is no single Federal agency that can alone be responsible for meeting the employment needs of people living with or at greater risk for HIV. Lead Federal agencies needed to coordinate and maximize resources to increase access to employment opportunities and vocational services for people living with or at higher risk for HIV include HHS (HRSA/HAB, CDC, SAMHSA, CMS), DoEd (Rehabilitation Services Administration), DOL (Employment and Training Administration, Office of Disability Employment Policy), and HUD (OHAH). Each is needed to explore its role and focus efforts contributing to implementing and achieving the goals of the National HIV/AIDS Strategy: Updated to 2020.
Increase access to employment opportunities and services by linking HIV, vocational rehabilitation, workforce development, education and housing service systems.
Federal agencies including HHS, DoEd, DOL and HUD are needed to work in coordination across agencies and their own programs to develop effective, targeted outreach, service needs assessment, information access, linkages and coordination between HIV services, vocational rehabilitation, workforce development, education and housing service systems at federal, state and local levels. Grantees and staff across service sectors need training and technical assistance to develop knowledge and skills to reduce HIV stigma and discrimination, and meet employment and vocational rehabilitation information and service needs of people living with or at higher risk for HIV. Capacity building training is needed designed to ensure effective trauma-informed services for key populations, including young Black and Latino MSM, transgender and cisgender women of color, and individuals who are formerly incarcerated.
Address workforce participation inequities for key populations (including homeless LGBT youth, trans women of color, and people with criminal records).
Effective cross-training, linkage and coordination between vocational rehabilitation (DoEd – RSA) and workforce participation (DOL – ETA, ODEP) programs and HIV prevention and care (HHS – HRSA, CDC) services needs to be developed, as well as with housing (HUD – OHAH), substance use treatment and mental health services (HHS – SAMHSA). Key populations with disproportionate incidence of new HIV infections and health disparities include communities with histories of stigma and discrimination in the workplace, in education, in services, and of inadequate access to healthy living wage employment. DoEd (RSA) and DOL (ETA, ODEP) are needed to design and implement strategies to maximize the capacity of vocational rehabilitation and workforce development programs to effectively serve communities with disproportionate incidence of HIV.
Existing and developing employment initiatives targeted for people living with or at higher risk for HIV need capacity building assistance.
Targeted HIV employment initiatives for key populations need to be developed and scaled up, including provision of information and technical assistance by the Department of Education (RSA) to HIV service providers about funding opportunities as Community Rehabilitation Providers to state vocational rehabilitation agencies, and by the Department of Labor (ETA, ODEP) for funding opportunities as workforce development providers. Mechanisms need to be developed linking HIV employment initiatives and key Federal agencies including DoEd, DOL, HHS and HUD for sharing of best practices, and capacity building needs assessment and resources, training and technical assistance.
Implement a multi-state HIV employment services demonstration project where HIV prevalence, infection rates and mortality are high.
Implementation of a multi-state HIV demonstration project in diverse high HIV prevalence communities is needed integrating vocational rehabilitation and employment services in HIV service organizations. Services should be designed to effectively serve key populations, including young Black and Latino MSM, transgender and cisgender women of color, and individuals who are formerly incarcerated, and should be responsive to diverse regional (e.g., the South), community (urban, suburban, rural) and job market factors.
Access to accurate information is needed on work earnings-related policies for key health care, housing and economic stability programs
Well-informed decision-making about working and transitions to employment depends on access to information to maintain or improve linkage to health care, housing and economic stability. People living with HIV and direct service providers need access to information and training about employment and work earnings-related policies for key programs including SSI/SSDI, Medicaid, Medicare, AIDS Drug Assistance Programs (ADAP) and other health coverage, and subsidized housing (Housing Opportunities for People With AIDS/HOPWA, Section 8). Individual benefits advisement is needed by people with HIV, as well as education about community-level resources available for vocational rehabilitation, training, education and employment services.
The National Working Positive Coalition is a coalition of individuals living with HIV, service providers, researchers, and advocates who are committed to improving the financial and personal wellbeing of individuals living with HIV and AIDS. To achieve this goal we (a) promote research to better understand the financial needs and complex challenges facing individuals with HIV; (b) promote the development and evaluation of effective practices in employment services and (c) advocate for work options and access to financial resources that are most consistent with the personal and health needs of individuals living with HIV. READ MORE