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

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

A: Yes. An individual is considered to have a "disability" if he or she has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Persons with HIV disease, both symptomatic and asymptomatic, have physical impairments that substantially limit one or more major life activities and are, therefore, protected by the law. Persons who are discriminated against because they are regarded as being HIV-positive 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 is HIV-positive. For example, the ADA would protect an HIV-negative woman who was denied a job because her roommate had AIDS.

Q: What employers are covered by the ADA?

A: 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.

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, and promotions. It also includes wages, benefits (including health insurance), leave, and all other employment-related activities. Examples of employment discrimination against persons with HIV/AIDS would include:

  • An automobile manufacturing company that had a blanket policy of refusing to hire anyone infected with the AIDS virus.
  • An airline that extended an offer to a job applicant and then rescinded the offer when, after the applicant took an HIV test as part of the airline s required medical examination, the applicant tested positive for HIV.
  • A restaurant that fired a waitress after learning that the waitress had HIV.

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 with a disability" is a person who meets legitimate skill, experience, education, or other requirements of an employment position he or she holds or seeks, and who can perform the "essential functions" of the position with or without reasonable accommodation.

Q: What is an "essential function" of the job?

A: 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.

Q: What is a "reasonable accommodation"?

A: 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 perform the essential functions of the job, participate in the application process, 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 HIV-positive accountant required two hours off, bimonthly, 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 frequent rest breaks during her work day. Her boss allowed her to take as many breaks as she 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 pneumocystis carinii pneumonia. He had already used up all his sick leave. His employer allowed him to either take leave without pay, or to use his accrued vacation leave.

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. Thus, it is the employee s responsibility to tell the employer that he or she needs a 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.

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

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 record available only under limited conditions.