Is this legal?

hoolahan, ASN, RN · Apr 3, 2002

I think I would check the EEOC on that one. The last I heard HIV status is confidential, and a person cannot be discriminated against for being HIV positive. I can't speak for Georgia law though. But, it certainly sounds fishy. I thought you have to sign a consent form to have a HIV test, maybe she can just not sign that consent?? I don't see why they would even need this info.

P_RN, ADN, RN · Apr 3, 2002

It's my understanding that pre-employment medical testing is not legal. Once the person is hired they are subject to the employers requirements. The HIV would require a consent, and Ga being an at-will state would probably view refusal as a reason to let the employee go. Actually they really won't need a reason in an at-will state.

LaurieCRNP2002, MSN, RN, APRN · Apr 3, 2002

Hoolahan was correct, people with HIV can't be discriminated against but that is per the Americans with Disabilities Act, not necessarily state law (although I concede some states may have written it into their laws as well). As for whether an employer can ask a potential employee to take a test, my instinctive answer would be no. Your best bet is to check with a lawyer who specializes in employment law and/or the EEOC. Good luck!

Laurie :kiss

SharonH, RN · Apr 3, 2002

Thanks Hoolahan. I forgot about the EEOC. I'll tell my friend to check it out.

hoolahan, ASN, RN · Apr 4, 2002

Let us know what happens Sharon, this is an interesting case.

Stargazer · Apr 4, 2002

It's my understanding that pre-employment medical testing is not legal.

My company requires pre-employment medical exams for a certain segment of our employees, because we are essentially self-insured. Once we hire someone, we pretty much "buy" any newly-discovered medical problems until MMI (maximum medical improvement or cure) is reached. The pre-employment physical is therefore our only opportunity for discovery.

That said, we don't test for HIV, and we don't ask their status. However, the employee is routinely asked if s/he has any preexisting or chronic health problems. Personally I don't have any problem if people don't reveal (+) HIV status then, as long as there are no serious ongoing health issues that are likely to interfere with their being able to complete their contracts, and as long as they don't then try to hit up the company for HIV-related treatments for their preexisting condition.

Home Health Columnist / Guide · Apr 4, 2002

playing devils advocate here:

key words in the post are "offered a job doing employee health"

"want her to have an hiv test and they want to know the results"

thinking as an employer now:

the employee health department is involved with every employee throughtout a facility and administers immunizations, possibly even doing lab testing on employees. to minimize the risk as an employer, they want to make sure that the person in this position has no possibility of inadvertaintly communicating an illness. this can be done only after job is offered to prospective employee.

what is important to find out, did they require this of any doctor doing employee physicals/treetment---otherwise it is a double standard and i think eeoc would be very interested in hearing about this.

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great article:

webber's website -- an hiv law and policy resource

http://www.critpath.org/aidslaw/nondisc.htm

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protection against discrimination: pre-employment inquiries and exams

federal law protects job applicants, as well as employees, against hiv-based discrimination. the primary federal law is the americans with disabilities act (ada), 42 u.s.c. 12112. the laws of many states and some localities also offer protection.

the ada protects job applicants by limiting employers' inquiries and use of tests to screen out persons with hiv. if an applicant is currently able to perform the essential function of the job, the fact that the applicant was disabled in the past can not be a basis for discrimination. medical examinations, including hiv testing, are permitted only after an employer has made an offer of employment. under the ada, the only legitimate purpose for post-offer medical exams is to determine if the applicant can perform the specific functions of the job. hiv status would rarely, if ever, be relevant to job function.

if the employer becomes aware of the applicant's hiv status, that information cannot be used to discriminate against the applicant.

employers may inquire about your ability to perform the job . . .

some examples of employer inquiries that are permissible:

*for an explanation about any gaps in employment history

about prior work experience

*about ability to perform physical tasks that are part of the job function

*about a disability, but only for the purpose of accommodating the disability

employers may not inquire about . . .

questions directly seeking to determine whether you have aids or hiv or another disability are not permitted. some examples of impermissible areas of inquiry:

*whether you have aids or hiv

*whether you are in "good health" and don't have any reason to anticipate the need for any sick leave in the future

*whether you have been hospitalized or treated for illness in the past

post-offer exams and tests . . .

once an offer of employment has been made, the applicant can be required to undergo an examination, although that examination should be limited to determining whether the applicant can perform the essential functions of the job. few, if

any, employers impose hiv testing under these circumstances.

the employer must:

*impose the same exam on all applicants for that job category

*maintain the information derived from the exam confidentially

not use the information to discriminate

*under these restrictions, it is not surprising that employers rarely require hiv testing.

if you encounter discrimination on the basis of hiv status in seeking employment, you should promptly seek advice of an attorney.

these and related issues are covered in more detail in aids and the law (3d ed.).

if you have comments or questions, please send me an e-mail.