California law expressly states that HIV/AIDS is a physical disability, even if it doesn’t have a present disabling effect. Likewise, California has long recognized that FEHA (Fair Employment and Housing Act) protects employees against discrimination on the basis of physical disability, such as high blood pressure or a heart condition, “that may handicap in the future but have no presently disabling effect.” The law was clearly designed to prevent arbitrary discrimination against handicaps, just because they may not have present disabling effects. (Sterling Transit Comp v Fair Employment Practice Commission (1981).
Recently, one California court noted that even with the recent advances in treatment, HIV/AIDS remains a devastating, progressive illness for which there is no known cure. Therapies such as ARV medications may delay its progression, but nothing yet can permanently alleviate the many symptoms and side effects experienced by those who are living with this condition, including the need for constant treatment and supervision. Therefore, it has been established that in California HIV is a disability as a matter of law.
Thus, an employee who is HIV positive is likely entitled to certain reasonable accommodations under ADA / FEHA (such as time to receive preventive treatment), even if he currently doesn’t have any obvious symptoms that affect his life or ability to work.
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