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HIV Status Litigation


HIV qualifies as a disability under the Americans with Disabilites Act (ADA). A disability under the ADA is a physical or mental impairment that substantially limits one or more major life activities or a record of such an impairment. Someone who is subjected to a prohibited employment action, such as failure to hire or termination because of HIV or the suspicion of HIV, could also easily show that an action was taken against him or her because of an actual or perceived impairment.

To be protected by the ADA, an individual with a disability must be qualified. An individual with a disability is qualified if he or she meets job-related requirements (e.g., has the necessary skill, education, and training for the job), and can, with or without a reasonable accommodation, perform the essential functions of the job. An employer may select the most qualified applicant available and is not required to prefer an individual with a disability over a better qualified applicant without a disability.

An employer must provide a reasonable accommodation to the known limitations of an otherwise qualified individual with a disability who needs one unless providing the accommodation would be an undue hardship.

A reasonable accommodation is any modification or adjustment to a job, the job application process, or the work environment that enables a qualified applicant or employee with a disability to have equal employment opportunities. A requested reasonable accommodation imposes an undue hardship on an employer if it involves significant difficulty or expense or requires the employer to change the basic nature of the business.

Example: Bill, an employee with HIV, must take medication on a strict schedule. The medication causes nausea one hour after ingestion, which generally lasts 45 minutes. He asks that he be allowed to take a daily 45-minute break when the nausea occurs. The employer must grant this request absent undue hardship.1

The ADA strictly limits when employers may ask medical questions or require medical exams.

Application & Interview Stage

An employer may not ask a job applicant disability-related questions, including whether the applicant is HIV-positive, before making a job offer. However, an employer may ask applicants whether they can perform the job and how they would perform the job, with or without an accommodation.

After Offer of Employment

After a job offer, but before an individual starts work, an employer may ask disability-related questions and require medical exams as long as the same questions and exams are required for everyone in the same job category. An employer may only withdraw an offer from an applicant with a disability if it becomes clear that he or she cannot perform the essential functions of the job or would pose a direct threat to health or safety in the workplace.

Example: Ben is given a conditional offer for a social worker position. The employer requires him to take a medical exam, which reveals that he has HIV. The employer may not withdraw the offer due to concerns about reactions that staff or patients may have to persons with HIV.

During Employment

An employer generally may only ask an employee medical questions or require a medical exam if it reasonably believes that the employee may be unable to perform a job successfully or safely because of a medical condition. The employer's reasonable belief must be based on objective evidence that it observed or learned from others who provided reliable information.

Example: A supervisor learns that Joe, one of his construction workers, is HIV-positive and has been taking medication for the past two years. There have been no incidents indicating a performance problem. The supervisor wants to send Joe for a medical exam to ensure that he is able to perform his duties. Requiring this exam violates the ADA because the supervisor has no objective evidence that he is unable to perform his job or poses a direct threat.

An employer also may ask an employee for reasonable documentation where an employee requests a reasonable accommodation and the disability and/or the need for an accommodation is not obvious or already known.

Finally, disability-related questions or medical examinations required by another federal law or regulation, such as testing allowed under regulations governing certain types of transportation jobs, are also permitted.

The ADA requires that medical information of employees and applicants be kept confidential. Medical information should be kept confidential even if it contains no medical diagnosis or treatment course, and even if it is not generated by a health care professional.

Example: An employer learns that an employee has HIV through social media. This medical information is subject to the ADA's confidentiality requirements.

Only in limited circumstances, employers may have to disclose medical information about applicants or employees.

If you have been discriminated against at work because of your HIV status, contact us for a consultation at (404) 343-2441. We are here to help.