AIDS and HIV Testing in the Workplace

The ADA prohibits screening applicants for HIV, and some state laws prohibit testing employees.

The disease of Acquired Immune Deficiency Syndrome (AIDS) was first identified in 1981. Fairly early on, researchers isolated its viral cause, the Human Immunodeficiency Virus (HIV), which suppresses the immune systems of those who carry it, making them easy ­targets for various other infections and diseases. Since then, while great strides have been made in treating AIDS symptoms, there still is no cure. Many of those who have the HIV ­infection live nearly symptom-free. But, ultimately, the disease is still considered fatal—and is spreading.

The impact on American workplaces has been and will continue to be enormous. Not only have hundreds of thousands of workers died, many have also suffered from the reactions of others—irrational fear and ostra­cism—that play in tandem with the AIDS ­epidemic. Many workplaces ­responded to the hysteria with more hysteria, developing intrusive policies of isolating workers suspected to have the disease.

Another offshoot of this hysteria is the ­practice of testing employees for the HIV ­virus. While a number of courts have struck down state and local efforts to screen ­employees for HIV, the practice continues in some workplaces.

Types of Tests

Although medical researchers may develop more methods of testing for HIV, the test first approved for commercial use by the Food and Drug Administration in 1985 is still in use today. Basically, the test measures antibodies in the blood that are stimulated by the virus. If a test is positive, indicating exposure to the deadly virus, a confirmation test is usually performed that uses a more complicated system of weighing molecular weights found in the blood.

However, there are a number of things the HIV antibody testing does not indicate. Tests do not identify people who have AIDS. AIDS is defined by the Centers for Disease Control (CDC), and the definition is still evolving. Currently, an individual is considered to have AIDS if he or she has any of the AIDS-related diseases specified by the CDC and has a T-count—or number of infection-fighting white corpuscles—of less than 200 in a cubic milliliter of blood.

Also, tests do not identify every person ­carrying the AIDS virus. The tests are aimed at measuring the antibodies stimulated by HIV, so they do not work effectively on those who have been exposed to the virus but have not developed antibodies to it—a period which usually takes about eight weeks, but may take up to a year or more.

Legal Controls on Testing

Originally, HIV blood tests were fashioned to screen blood, not people. But when prospective employees and employees are subjected to testing, the reality is that people are being screened and sometimes labeled as unfit workers.

A federal law, the Americans With Dis­abilities Act (ADA), prohibits testing job applicants to screen out people with HIV or AIDS. Once an applicant is offered a job, however, the legal constraints on testing are less strict. To avoid singling out any individual or group, which would be ­illegal discrimination, an employer would have to test all employees. Even then, to justify giving employees an HIV test, an employer would have to show that the test is necessary to determine whether applicants are fit to hold a job. This would be nearly an impossible task, as many people infected with HIV show no symptoms of ill health.

Most states have laws setting some controls on employers’ uses of HIV tests. Test results may not be used to determine suitability for insurance coverage or employment accord­ing to the laws in a number of states, including Florida. (Fla. Stat. § 381.004.) And Massachusetts bans employers from ­requiring employees to take a test as a ­condition of employ­ment. (Mass. Gen. Laws ch. 111, § 70f.)

Also, a number of cities have enacted ordinances that put additional limits on how and when employers may test for HIV and AIDS. A strict law in San Francisco, for example, states that employers cannot test for AIDS unless they can show that the absence of AIDS is an essential employment qualification. (San Francisco Police Code §§ Art. 38, 3801-16.)

This area of the law is changing very rapidly. Double check your local, state, and federal law for recent changes. A local clinic, support group, or AIDS hotline may be able to provide you with the most up-to-date local information. A number of organizations also offer information on the HIV virus, AIDS, and resources on AIDS in the workplace.

See also our article on HIV and AIDS discrimination in the workplace.

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