The Americans with Disabilities Act and Individuals with HIV/AIDS
8/7/2012By
The Civil Rights Division of the U.S. Department of Justice has released new guidance confirming that individuals with HIV, both symptomatic and asymptomatic, are protected under the Americans with Disabilities Act (ADA). In addition, the ADA protects individuals who are discriminated against because they are regarded as having HIV or AIDS, or because they have a known association or relationship with an individual who has HIV/AIDS.
The guidance does not change an employer’s obligations under the ADA, but provides employers with a helpful reminder that they need to be mindful of the ADA in their hiring and employment practices with regard to HIV/AIDS. Below are some highlights of the guidance.
Pre-hire
Prior to a conditional job offer, an employer may not inquire about the health status of an applicant or ask disability-related questions. Nor may an employer ask an applicant questions likely to solicit information about a disability or ask the applicant to submit to a medical examination. Interview questions must be limited to the applicant’s ability to perform specific job functions
Once an offer of employment has been made, the employer may condition the offer on the satisfactory outcome of a post-offer medical examination or medical inquiry, if a medical examination or inquiry is required of all entering employees in the same job category. If the employer withdraws the job offer based on the outcome of the medical examination, the reason(s) must be job-related and consistent with business necessity. In general, a diagnosis of HIV/AIDS alone never establishes a basis for a refusal to hire.
Post-hire
Once an individual is hired, the employer may require the employee to undergo a medical examination when the examination is job-related and consistent with business necessity. An employer may not inquire if an individual has HIV or AIDS or require an individual to undergo an examination even if, for example, the individual has experienced a sudden weight loss. However, an employer may require an employee to undergo a medical examination if an employee experiences obvious health changes that appear to be impacting the individual’s work performance.
An employer is required to provide a reasonable accommodation to an employee unless the employer can demonstrate that the requested accommodation would impose an undue hardship on the operation of the business, meaning significant difficulty or expense. It is the responsibility of the employee to request the accommodation, which may consist of: (1) making existing facilities readily accessible to and usable by the employee with a disability; (2) restructuring a job; (3) modifying work schedules; (4) acquiring or modifying equipment; and/or (5) reassigning an employee to a vacant position for which the individual is qualified. An employer may require the employee to provide medical documentation of the employee’s disability and limitations resulting from the disability in order for the employer to effectively provide a reasonable accommodation. Even if the employee does not wish to disclose that he/she has HIV or AIDS, disclosure may be necessary in order to obtain a reasonable accommodation.
What should an employer keep in mind?
- Focus on the job duties in question when interviewing: ask about how someone would perform a task, rather than on their real or perceived medical condition.
- Don’t make decisions based upon a perception or fear that an individual will become ill in the future.
- Do not consider an applicant’s or employee’s relationships and associations with individuals with HIV/AIDS in any employment decisions.
- Provide requested accommodations or appropriate alternatives which enable an individual to do the job to the extent that it does not create an undue hardship.
- Train all hiring managers on ADA obligations.
The Department of Justice’s guidance on HIV/AIDS is available for review online at http://www.ada.gov/aids/ada_q&a_aids.pdf.
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