The U.S. Department of Justice has issued guidance, in the form of Q&As, on the Americans with Disabilities Act (the “ADA”) and individuals with HIV/AIDs.
The Q&As say that HIV and Aids are “diseases” covered by the ADA, so that individuals living with HIV or AIDs are entitled to protection under the ADA. The Q &As continue by discussing how the ADA applies to individuals with HIV/AIDs. Among the matters raised:
A question-may an employer consider health and safety when deciding whether to hire an applicant or retain an employee who has HIV or AIDS? The Q&As say “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.
The Q&As say further that the 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 prenatally 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.
Another question-when can an employer inquire into an applicant’s or employee’s HIV status? The Q&As say that an application for employment 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.
The Q&As further say that, 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.
Third question-what obligations does an employer have if an employee discloses his or her HIV status? The Q&As say that 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