The Department of Justice has released new guidance in Questions and Answers: The Americans with Disabilities Act and Persons with HIV/AIDS. The document discusses ADA compliance with respect to public accommodations, employers, state and local governments and housing facilities.
The guidance answers questions, including the following:
Can an employer consider health and safety when deciding whether to hire an applicant or retain an employee who has HIV or AIDS?
Yes, but only under limited circumstances. ADA permits employers to establish qualification standards that will exclude individuals who pose a direct threat — that is, 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. 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 — ADA recognizes the need to balance the interests of people with disabilities against the legitimate interests of employers in maintaining a safe workplace.
HIV transmission rarely will 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.
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 handling food. However, HIV and AIDS are specifically not included on the Centers for Disease Control and Prevention list of infectious and communicable diseases that are transmitted through food handling. Thus, no direct threat exists in this context.
An employer may believe that an emergency medical technician 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.
Having HIV or AIDS, however, might impair an individual’s ability to perform certain functions of a job, thus causing the individual to pose a direct threat to the health or safety of the individual or others.
For example: A worker with HIV who operates heavy machinery and who has been experiencing unpredictable dizzy spells caused by a new medication he is taking might pose a direct threat to his or someone else’s safety. If no reasonable accommodation is available (for example, an open position to which the employee could be reassigned), the employer would likely not violate ADA if it removed the employee from the position until a physician certified that it was safe for the employee to return to the job.
As noted above, the direct threat assessment must be an individualized assessment. Any blanket exclusion — for example, refusing to hire persons with HIV or AIDS because of a perceived risk — would violate ADA as a matter of law.
When can an employer inquire into an applicant’s or employee’s HIV status?
An application 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.
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