Information from HIVPositive.com (www.hivpositive.com)
Are HIV-Positive Persons or Those Diagnosed with AIDS Considered to Have a Disability? Yes, as the U.S. Congress, the Equal Employment Opportunity Commission, and the courts have indicated that those who are known to be infected with the HIV meet the definition of disability under The Americans with Disabilities Act of 1990 (ADA). This is due to the fact that HIV infection is a substantially limiting impairment. Anti-discrimination provisions also apply to caregivers and/or those who have a relationship or association with those with HIV infection.
What Can an Employer Ask About the Medical Condition of an HIV-Positive Person?
Employers may not ask job applicants about the existence, nature, or severity of a disability. Nor can an employer require any applicant to undergo a medical examination. Thus, an employer cannot ask applicants if they have HIV infection, AIDS, or any opportunistic infection associated with AIDS. Nor can an employer require any applicant to take an HIV antibody test, because that is a medical examination. However, applicants may be asked about their ability to perform specific job functions.
Under the ADA, an employer may ask individuals whether they have HIV infection or AIDS only after extending a conditional offer of employment. However, questions must be asked of all individuals entering a job category, not just an individual suspected of HIV infection. If a conditional job offer is withdrawn because of the results of such examination or inquiry, an employer must be able to show that the reasons for the exclusion are job-related and consistent with business necessity, or the person is being excluded to avoid a "direct threat" to health or safety; and that the reasons for the exclusion are job-related and consistent with business necessity, or the person is being excluded to avoid a "direct threat" to health or safety; and that no reasonable accommodation was available that would enable this person to perform the essential job functions without a significant risk to health or safety, or that such an accommodation would cause undue hardship.
Information that an individual has HIV infection will rarely justify withdrawal of the job offer. In many cases, HIV infection and AIDS will not interfere with the individual's ability to perform the essential job functions. Moreover, the individual is entitled to a reasonable accommodation to permit performance of essential job functions.
Since the mere fact that an individual has HIV infection will almost never justify revoking a job offer, employers may want to consider whether it is advisable to make such inquiries. Similarly, employers may not want to conduct HIV testing because the results alone will not justify revocation of a job offer. Once an employer obtains such information, it must be kept confidential and the employer could be held liable if there is any breach of confidentiality.
Asking current employees whether they have HIV infection or AIDS, or requiring employees to take an HIV antibody test, will rarely be permissible under the ADA, unless the employer can show that such inquiries or testing is job-related and consistent with the employers' business necessity.
What is Reasonable Accommodation?
The critical concept in the employment provisions (Title I) of the ADA is that of "reasonable accommodation." Reasonable accommodation is any modification or adjustment to a job, an employment practice, or the work environment that makes it possible for a qualified individual with a disability to participate in and enjoy an equal employment opportunity. The employer's obligation to provide a reasonable accommodation applies to all aspects of employment; the duty is ongoing and may arise any time a person's disability or job changes. An employer is not required to provide an accommodation that will impose an undue hardship on the operation of the employer's business. An employment opportunity cannot be denied to a qualified applicant or employee solely because of the need to provide reasonable accommodation.
Since estimates show as many as 1 in 250 Americans is infected with HIV, accommodation in the workplace for infected individuals who can continue to work makes economic, as well as common sense. Since these individuals' presence in the workplace poses no threat of transmission, their experience on the job is an asset to be retained. In addition, even those HIV-infected individuals who develop full-blown AIDS are able to remain productive members of the workforce for extended periods. These working years are increasing due to new treatments being introduced for HIV infection.
What Types of Accommodations Should be Considered for HIV-Positive Employees?
It is helpful if employers have established policies on non-discrimination for persons with life-threatening illnesses. These policies should emphasize that employees with illnesses such as cancer, HIV, and heart disease may wish and be able to work a regular or modified work schedule.
If the HIV-positive employee eventually becomes unable to perform essential functions, the employer must consider whether reasonable accommodation will permit him/her to do so. Examples include:
� Flex-time to allow for medical appointments, treatment and counseling
� Auxiliary aids and services, for example, large print for someone with AIDS who has developed a vision impairment; and
� Additional unpaid leave
Which Employee Records Require Confidential Handling?
The ADA imposes very strict limitations on the use of information obtained from medical inquiries and examinations, including information relating to a person's HIV infection/AIDS. All such information must be collected and maintained on separate forms, in separate medical files, and must be treated as a confidential medical record. This information cannot be stored in an employee's personnel file.
There are only five situations in which medical information may be shared with others. This includes sharing medical information with supervisors and managers about necessary restrictions on the work or duties of an employee and necessary accommodations; first aid and safety personnel if the disability might require emergency treatment; government officials investigating compliance with the ADA; state workers' compensation offices or "second injury" funds; and insurance companies.
What if the employer feels that the person who is HIV positive poses a direct threat to health or safety of others, or themselves?
The ADA does not require an employer to hire or retain an individual whose disability poses a "direct threat" to the health or safety of others or to him/herself. Direct threat means that "an individual poses a significant risk of substantial harm" to self or others, and covers concerns about transmission of infectious diseases, including HIV infection. A direct threat determination must be done on an individualized basis, assessing both the individual with a disability, his/her essential job functions, and the workplace. The assessment of risk must be based on current, objective medical or other factual evidence. A speculative or remote risk will not constitute a direct threat. If a direct threat is identified, the employer must determine whether a reasonable accommodation will eliminate or reduce the risk so that it is below the level of a direct threat.
Medical and public health authorities have established that HIV infection cannot be transmitted through casual, social contact as exists in the vast majority of jobs and workplaces. Nor is HIV infection transmissible through food or food handling. As a result, HIV transmission in the workplace will rarely constitute a direct threat and thus can only rarely be the basis for firing or refusing to hire an individual with HIV infection.
An employer who treats a person with HIV infection or AIDS differently because of concerns that the individual may have tuberculosis and may infect others will violate the ADA. The mere fact that a person has HIV infection or AIDS does not mean the person has tuberculosis or any other impairment. Thus, it would be discrimination to refuse to hire a person with HIV infection because of concerns that the person might have active tuberculosis, or might develop tuberculosis in the future. Neither of these scenarios constitute a direct threat under the ADA because they are based on speculation.
Does the ADA affect the employer's choice of insurance benefits where coverage of HIV-positive persons is concerned?
Employees with HIV/AIDS must be given equal access to whatever insurance or benefit plans the employer provides. An employer cannot fire or refuse to hire an individual with HIV/AIDS because the individual may increase the employer's future health care costs. Similarly, an employer cannot fire or refuse to hire an individual because the individual has a family member or dependent with HIV/AIDS that may increase the employer's future health care costs.
What Types of Accommodations Should be Considered for HIV-Positive Employees?
It is helpful if employers have established policies on non-discrimination for persons with life-threatening illnesses. These policies should emphasize that employees with illnesses such as cancer, HIV, and heart disease may wish and be able to work a regular or modified work schedule.
If the HIV-positive employee eventually becomes unable to perform essential functions, the employer must consider whether reasonable accommodation will permit him/her to do so. Examples include:
� Flex-time to allow for medical appointments, treatment and counseling
� Auxiliary aids and services, for example, large print for someone with AIDS who has developed a vision impairment; and
� Additional unpaid leave
Which Employee Records Require Confidential Handling?
The ADA imposes very strict limitations on the use of information obtained from medical inquiries and examinations, including information relating to a person's HIV infection/AIDS. All such information must be collected and maintained on separate forms, in separate medical files, and must be treated as a confidential medical record. This information cannot be stored in an employee's personnel file.
There are only five situations in which medical information may be shared with others. This includes sharing medical information with supervisors and managers about necessary restrictions on the work or duties of an employee and necessary accommodations; first aid and safety personnel if the disability might require emergency treatment; government officials investigating compliance with the ADA; state workers' compensation offices or "second injury" funds; and insurance companies.
What if the employer feels that the person who is HIV positive poses a direct threat to health or safety of others, or themselves?
The ADA does not require an employer to hire or retain an individual whose disability poses a "direct threat" to the health or safety of others or to him/herself. Direct threat means that "an individual poses a significant risk of substantial harm" to self or others, and covers concerns about transmission of infectious diseases, including HIV infection. A direct threat determination must be done on an individualized basis, assessing both the individual with a disability, his/her essential job functions, and the workplace. The assessment of risk must be based on current, objective medical or other factual evidence. A speculative or remote risk will not constitute a direct threat. If a direct threat is identified, the employer must determine whether a reasonable accommodation will eliminate or reduce the risk so that it is below the level of a direct threat.
Medical and public health authorities have established that HIV infection cannot be transmitted through casual, social contact as exists in the vast majority of jobs and workplaces. Nor is HIV infection transmissible through food or food handling. As a result, HIV transmission in the workplace will rarely constitute a direct threat and thus can only rarely be the basis for firing or refusing to hire an individual with HIV infection.
An employer who treats a person with HIV infection or AIDS differently because of concerns that the individual may have tuberculosis and may infect others will violate the ADA. The mere fact that a person has HIV infection or AIDS does not mean the person has tuberculosis or any other impairment. Thus, it would be discrimination to refuse to hire a person with HIV infection because of concerns that the person might have active tuberculosis, or might develop tuberculosis in the future. Neither of these scenarios constitute a direct threat under the ADA because they are based on speculation.
Does the ADA affect the employer's choice of insurance benefits where coverage of HIV-positive persons is concerned? Employees with HIV/AIDS must be given equal access to whatever insurance or benefit plans the employer provides. An employer cannot fire or refuse to hire an individual with HIV/AIDS because the individual may increase the employer's future health care costs. Similarly, an employer cannot fire or refuse to hire an individual because the individual has a family member or dependent with HIV/AIDS that may increase the employer's future health care costs.
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