Legal Considerations

Is HIV a disability? | About the Americans with Disabilities Act (ADA) | More Info

Is HIV a disability?

Business sense:

HIV is a disability under the Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act (MTuesday, November 13, 2007V, or against those perceived as having HIV.

Know more:

The ADA and MHRA prohibit employers from discriminating against a “qualified individual with a disability.” This applies to applications, hiring, advancement, discharge, compensation, training and other conditions of employment. According to both laws, disabled persons should receive the same employment opportunities as anyone else.

FYI:

Employers must clearly justify the use of any employee standard, criterion or job description that tends to exclude or adversely affect disabled workers.
For information about ADA and MHRA, contact the Minnesota Department of Human Rights at 800-657-3704 or 651-296-5663. Or go to the Web site at www.humanrights.state.mn.us. A good national resource for small businesses is the Equal Employment Opportunities Commission. Go to their Web site at www.eeoc.gov.

About the Americans with Disabilities Act (ADA)

The following are excerpts from an article on HIV discrimination in the workplace prepared by Chai Feldblum, ACLU AIDS Project, Legislative Counsel.

In 1990, Congress enacted the Americans with Disabilities Act (ADA). The ADA prohibits workplace discrimination based on disability, including HIV disease. It covers all employers in the United States with 15 or more employees.

What you need to know:

The ADA defines a person with a disability as:

(1) Someone with a physical or mental impairment that might substantially limit the person in one or more major life activities;
(2) Someone with a record of such impairment; or
(3) Someone regarded as having such an impairment.

The legislative history explicitly notes that people with HIV are covered under the first prong of this definition. This has been upheld in subsequent Supreme Court decisions. Individuals who do not actually have HIV but are regarded as having HIV disease and are discriminated against on that basis are covered under the third prong of the definition. Protection is also extended to any individual who is a friend of, who lives with, who cares for, or who otherwise has an association with a person with HIV disease.

Those protected by the ADA must be a “qualified person with a disability.” This is defined in the ADA as a person who, “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”

Essential functions:

These are basically what they sound like: functions that are not marginal or tangential to the job in question. Thus, an employer is allowed to refuse to hire or retain a person with a disability who, because of the disability, truly cannot perform an essential function of the job. It is not legitimate, however, for the employer to refuse to hire or retain a person with a disability who, because of his or her disability, cannot perform some job task that is marginal to the job.

Reasonable Accommodation:

A person with a disability can often perform the essential functions of a job if some modifications or adjustment is first made in some aspects of the job. The ADA requires employers to provide such reasonable accommodation to the known physical or mental disabilities of their applicants and employees. However, an employer need not provide an accommodation if doing so would impose an “undue hardship.”

HIV testing:

The provisions in the ADA regarding medical examinations and inquiries of job applicants, including examinations to test for antibodies to HIV, basically follow the regulations issued under the Rehabilitation Act of 1973 and the “job-related and consistent with business necessity” standard. The ADA does provide certain additional classifications regarding testing.

Health benefits:

The protections provided by the ADA with regard to health benefits for persons with HIV are less clear. However, there are various principles that may be derived from legislative guidance:

(1) Employers may not refuse to hire an individual because the individual will cost the employer more in terms of insurance premiums or health care costs;
(2) Employers and insurance companies may continue to include preexisting condition clauses in their health plans, even though such clauses eliminate benefits for a special time period, for people with disabilities;
(3) Employers and insurance companies may limit coverage for certain procedures or treatments;
(4) An employer may not, however, have a health plan that denies coverage “completely” to an individual based on diagnosis.

Remedies:

Plaintiffs must first go through the administrative process established under the Equal Employment Opportunity Commission. Plaintiffs then have a private right of action in court and have the right to get injunctive relief, compensatory and punitive damages and reimbursement for litigation expenses.

More Information

For information about ADA, MHRA and FMLA, contact the Minnesota Department of Human Rights by phone at 800-657-3704 or 651-296-5663, or online at www.humanrights.state.mn.us.

A good national resource for small businesses is the Equal Employment Opportunities Commission: www.eeoc.gov.

Last Updated: Tuesday, November 13, 2007
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