Questions and Answers: The ADA and Persons with HIV/AIDS

II. Employment

What employers are covered by the ADA?

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

What employment practices are covered by the ADA?

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, and promotions. It also includes wages, benefits, leave, and all other employment-related activities. Examples of employment discrimination against persons with HIV or AIDS would include:

• An automobile manufacturing company that had a blanket policy of refusing to hire anyone with HIV or AIDS.

• An airline that extended an offer to a job applicant and then rescinded the offer after the employer discovered (during the post-offer physical) that the applicant had HIV.

• A restaurant that fired a waitress after learning that the waitress had HIV.

• A university that fired a physical education instructor after learning that the instructor’s boyfriend had AIDS.

• A County tax assessment office that cancelled training opportunities for an accountant following her disclosure that she had HIV.

• A retail store that generally rotated all sales associates between the sales floor (where they could earn commissions) and the stock room (where they processed merchandise) except for the sales associate who was rumored to have HIV, who was never rotated to the floor.

• 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.

Who is protected by the employment provisions of the ADA?

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.

What is an “essential function” of the job?

Essential functions of the job are those core duties that are the reason the job position exists. For example, an essential function of a typist’s position is the ability to type; an essential function of a bus driver’s position is the ability to drive.

Requiring the ability to perform “essential” functions assures that an individual with a disability will not be considered unqualified because of his or her inability to perform marginal or incidental job functions.

What is a “reasonable accommodation”?

A “reasonable accommodation” is any modification or adjustment to a job, the job application process, or the work environment 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:

• An accountant with HIV who had no available sick leave required two hours off, monthly, for visits to his doctor. He was permitted to take longer lunch breaks and to make up the time by working later on those days.

• A supermarket check-out clerk with AIDS had difficulty standing for long periods of time. Her employer provided her with a stool so that she could sit down at the cash register when necessary.

• A secretary with AIDS needed to take rest breaks at irregular intervals during her work day. Her boss allowed her to take the breaks as needed throughout the day, so long as she completed her work before going home each evening.

• 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.

Does an employer have to provide a needed reasonable accommodation?

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. If the requested accommodation would impose an undue hardship, the employer is not required to provide the accommodation. 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. Determination as to whether a particular accommodation poses an undue hardship must be made on a case-by-case basis.

Customer or co-worker attitudes are not relevant factors in determining an undue hardship. The potential loss of customers or co-workers because an employee has HIV or AIDS does not constitute an undue hardship.

An employer is not required to provide an employee’s first choice of accommodation. The employer is, however, required to provide an effective accommodation, i.e., an accommodation that meets the individual’s needs and will allow him or her to perform the essential functions of the job or enjoy the full benefits of employment.

When is an employer required to make a reasonable accommodation?

An employer is only required to accommodate a “known” disability of a qualified applicant or employee. Thus, in most circumstances, it is the responsibility of the employee to request the reasonable accommodation. If the employee does not want to disclose that he or she has HIV or AIDS, it may be sufficient for the employee to say that he or she has an illness or disability covered by the ADA, that the illness or disability causes certain problems with work, and that the employee wants a reasonable accommodation. However, an employer can require medical documentation of the employee’s disability and the limitations resulting from that disability so disclosure may be necessary at some point during the interactive reasonable accommodation process.

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

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.

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

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 him/herself or to the safety of others, if that risk cannot be eliminated or reduced below the level of a “direct threat” by reasonable accommodation. However, an employer may not simply assume that a threat exists; the employer must establish through objective, medically-supportable methods that there is a significant risk that substantial harm could occur in the workplace. By requiring employers to make individualized judgments based on reliable medical or other objective evidence—rather than on generalizations, ignorance, fear, patronizing attitudes, or stereotypes—the ADA recognizes the need to balance the interests of people with disabilities against the legitimate interests of employers in maintaining a safe workplace.

Transmission of HIV will rarely be a legitimate “direct threat” issue. It is medically established that HIV can only be transmitted by sexual contact with an infected individual, exposure to infected blood or blood products, or perinatally from an infected mother to infant during pregnancy, birth, or breast feeding. 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, because the employee might transmit HIV through the handling of food. However, HIV and AIDS are specifically not included on the Centers for Disease Control and Prevention (CDC) list of infectious and communicable 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 use of universal precautions among emergency responders means that 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 caused by a new medication he is taking might pose a direct threat to his or someone else’s safety. If no reasonable accommodation is available (e.g., an open position to which the employee could be reassigned), the employer would likely not violate the ADA if it removed the employee from the position until a physician certified that it was safe for the employee to return to the job.

As noted above, the direct threat assessment must be an individualized assessment. Any blanket exclusion—for example, refusing to hire persons with HIV or AIDS because of a perceived risk—would violate the ADA as a matter of law.

When can an employer inquire into an applicant’s or employee’s HIV status?

An application cannot seek information about health status or ask disability-related questions. Likewise, an employer may not ask a job applicant disability-related questions or questions likely to solicit information about a disability or ask an applicant to submit to a medical examination before an offer is made. An employer may, however, ask the applicant questions during the interview 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 medical inquiry, if such medical examination or inquiry is required of all entering employees in the same job category. However, if the employer withdraws a job offer because the post-offer medical examination or inquiry 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. Employers may conduct employee medical examinations where there is evidence of a job performance or safety problem, when examinations are required by other Federal laws, and/or when examinations are necessary to determine current “fitness” to perform a particular job. For example, an employer could not ask an employee who had recently lost a significant amount of weight, but whose job performance had not changed in any way, whether the employee had HIV or AIDS. An employer could, however, require an employee who was experiencing frequent dizzy spells, and whose work was suffering as a result, to undergo a medical examination.

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

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.

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

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.

Thus, for example, blanket pre-existing condition clauses that exclude from the coverage of a health insurance plan the treatment of all physical conditions that predate an individual’s eligibility for benefits are not distinctions based on disability and do not violate the ADA. A pre-existing condition clause that excluded only the treatment of HIV-related conditions, however, is a disability-based distinction and would likely violate the ADA.

Similarly, a health insurance plan that capped benefits for the treatment of all physical conditions at $50,000 per year does not make disability-based distinctions and does not violate the ADA.

A plan that capped benefits for the treatment of all physical conditions, except HIV or AIDS, at $50,000 per year, and capped the treatment for AIDS-related conditions at $10,000 per year, does distinguish on the basis of disability and likely violates the ADA.

What can an applicant or employee do if he or she believes that he or she is being discriminated against on the basis of his or her HIV or AIDS?

An applicant or employee who believes that he or she has been subjected to discrimination on the basis of having HIV or AIDS may file a charge with the nearest Equal Employment Opportunity Commission office. The charge must be filed within 180 days of when the discrimination occurred. The EEOC will investigate the charge and either act (on its own or through a referral of the charge to the appropriate government agency) to correct the problem or give the employee a “right to sue” letter. The right to sue letter permits the employee to sue the employer directly. The employee may be entitled to the job or promotion he or she was denied, a reasonable accommodation that was denied, back pay, benefits, or other damages.