Justice Department Releases New ADA Guidance on the Rights of Persons with HIV/AIDS

            The U.S. Department of Justice has released a new fact sheet in FAQ format explaining the rights of people with (or thought to have) HIV/AIDS under the Americans with Disabilities Act (ADA). Here are some important excerpts:

Q.        Are people living with HIV or AIDS protected by the ADA?

A.        Yes. Persons with HIV, both symptomatic and asymptomatic, have physical impairments that substantially limit one or more major life activities or major bodily functions and are, therefore, protected by the law.

Q.        Are people merely "regarded as" having HIV also protected by the ADA?

A.        Persons who are discriminated against because they are regarded as having HIV are also protected. For example, a person who was fired on the basis of a rumor that he had AIDS, even if he did not, would be protected by the law. Moreover, the ADA protects persons who are discriminated against because they have a known association or relationship with an individual who has HIV. For example, the ADA would protect a woman (who does not have HIV) who was denied a job because her roommate had AIDS.

Q.        What employers are covered by the ADA?

A.        The ADA prohibits all private employers with 15 or more employees, and all public entities, regardless of the size of their work force, from discriminating in employment against qualified individuals with disabilities.

Q.        What employment practices are covered by the ADA?

A.        The ADA prohibits discrimination in all employment practices. This includes not only hiring and firing, but job application procedures (including the job interview), job assignment, training, promotions, wages, benefits, leave, and all other employment-related activities. Examples include:

• A County tax assessment office that cancelled training opportunities for an accountant following her disclosure that she had HIV.
• A call center employee who was denied a promotion to shift manager because his employer believed the employee would be unreliable since he had AIDS.
• A company that contracted with an insurance company that had a cap on health insurance benefits provided to employees for HIV-related complications, but not on other health insurance benefits.

Q.        Who is protected by the employment provisions of the ADA?

A.        The ADA prohibits employment discrimination against qualified individuals with disabilities. A "qualified individual" means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.            Essential functions of the job are those core duties that are the reason the job position exists (e.g., the ability to type for a typist).

Q.        What is a "reasonable accommodation"?

A.        A "reasonable accommodation" is any modification or adjustment that will enable a qualified applicant or employee with a disability to participate in the application process, perform the essential functions of the job, or enjoy the benefits and privileges of employment. Examples of "reasonable accommodations" include: making existing facilities readily accessible to and usable by employees with disabilities; restructuring a job; modifying work schedules; acquiring or modifying equipment; and reassigning a current employee to a vacant position for which the individual is qualified. For example:

• A machine operator required time off from work during his hospitalization with AIDS-related pneumonia. He had already used up all his sick leave. His employer allowed him to take leave without pay.
• A computer programmer with HIV had bouts of nausea caused by his medication. His employer allowed him to work at home on those days that he found it too difficult to come into the office for the month it took him to adjust to his medication.
• A newspaper editor with HIV who tired easily from walking began to use an electric scooter. His employer installed a ramp at the entrance to the building in which the editor worked so that the editor could use his scooter at the office.

Q.        Does an employer have to provide a needed reasonable accommodation?

A.        Once an employer determines that an accommodation is reasonable, it is required to provide it, unless the employer can demonstrate that the requested accommodation would impose an undue hardship on the operation of the business. An undue hardship is an action that requires "significant difficulty or expense" in relation to the size of the employer, the resources available, and the nature of the operation. The potential loss of customers or co-workers because an employee has HIV or AIDS does not constitute an undue hardship.

Q.        When is an employer required to make a reasonable accommodation?

A.        An employer is only required to accommodate a "known" disability of a qualified applicant or employee.

Q.        What if an employer has concerns about an applicant's ability to do the job in future?

A.        Employers cannot fire or choose not to hire a qualified person now because they fear the worker will become too ill to work in the future. The hiring decision must be based on how well the individual can perform at the present time. In addition, employers cannot decide not to hire qualified people with HIV or AIDS because they are afraid of higher medical insurance costs, workers' compensation costs, or the potential for absenteeism.

Q.        Can an employer consider health and safety when deciding whether to hire an applicant or retain an employee who has HIV or AIDS?

A.        Yes, but only under limited circumstances. The ADA permits employers to establish qualification standards that will exclude individuals who pose a direct threat-i.e., a significant risk of substantial harm-to the health or safety of the individual himself or of others, if that risk cannot be eliminated or reduced below the level of a "direct threat" by reasonable accommodation. However, the employer must establish through objective, medically-supportable methods that there is a significant risk that substantial harm could occur in the workplace.

            Transmission of HIV will rarely be a legitimate "direct threat" issue. HIV cannot be transmitted by casual contact. Thus, there is little possibility that HIV could ever be transmitted in the workplace. For example:

• A restaurant owner may believe that there is a risk of employing an individual with HIV as a cook, waiter or waitress, or dishwasher. However, HIV and AIDS are specifically not included on the Centers for Disease Control (CDC) list of infectious diseases that are transmitted through the handling of food. Thus, no direct threat exists in this context.
• An employer may believe that an emergency medical technician ("EMT") with HIV may pose a risk to others when performing mouth-to-mouth resuscitation. However, the EMT will be using a barrier device while performing resuscitation.

            Having HIV or AIDS, however, might impair an individual's ability to perform certain functions of a job, thus causing the individual to pose a direct threat to the health or safety of the individual or others. For example:

• A worker with HIV who operates heavy machinery and who has been experiencing unpredictable dizzy spells might pose a direct threat to safety. If no reasonable accommodation is available, the employer would likely not violate the ADA if it removed the employee from the position until it was safe for the employee to return to the job.

Q.        When can an employer inquire into an applicant's or employee's HIV status?

A.        An application and employment interview cannot seek information about health status or ask disability-related questions, nor can an applicant be asked to submit to a medical examination before an offer is made. An employer may, however, ask the applicant questions about the applicant's ability to perform specific job functions.

            An employer may condition a job offer on the satisfactory outcome of a post-offer medical examination or inquiry, if it's required of all entering employees in the same job category. However, if the employer withdraws a job offer because the post-offer medical reveals a disability, the reason(s) for not hiring must be job-related and consistent with business necessity. Having HIV alone can almost never be the basis for a refusal to hire after a post-offer medical examination.

            After a person starts work, a medical examination or inquiry of an employee must be job-related and consistent with business necessity.

Q.        What obligations does an employer have if an employee discloses his or her HIV status?

A.        The ADA requires that medical information be kept confidential. This information must be kept apart from general personnel files as a separate, confidential medical file available only under limited conditions.

Q.        What obligations does an employer have to provide health insurance to employees with HIV or AIDS?

A.        The ADA prohibits employers from discriminating on the basis of disability in the provision of health insurance to their employees and/or from entering into contracts with health insurance companies that discriminate on the basis of disability. Insurance distinctions that are not based on disability, however, and that are applied equally to all insured employees, do not discriminate on the basis of disability and do not violate the ADA.

           If you have any questions about any of the information in this Compliance Matters, please call your contact at the firm. Have a great summer.