Must an employer keep confidential an employee’s voluntarily disclosed HIV status?


Issue:

Shortly after Walter began working as a truck driver, he voluntarily disclosed to his employer’s human resources manager that he is HIV positive. Walter’s job includes training new drivers. Senior executives want to require any trainee assigned to Walter to sign a form “consenting to be trained by an HIV-positive driver.” Does this violate the Americans with Disabilities Act’s nondisclosure provision?

Answer:    

No, at least not in the Tenth Circuit. In a case with similar facts, the Tenth Circuit rejected the EEOC’s assertion that by requiring trainees to sign such a document, the employer disclosed medical information about the driver’s HIV status to employees in violation of Sec. 102(d) of the Americans with Disabilities Act. On its face, Sec. 102(d) does not apply to or protect information that is voluntarily disclosed by an employee unless it is elicited during an authorized employment-related medical examination or inquiry, wrote the court. “[I]f an employer discloses medical information that was voluntarily offered by an employee — outside of the context of an authorized employment-related medical examination or inquiry — then the employer is not subject to liability under Sec. 102(d).”

Source: EEOC v C.R. England, Inc (10thCir 2011) 2011 U.S. App. LEXIS 8971.

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