Employers need to educate themselves about their potential obligations to HIV-infected employees in the workplace. The need for employers and their supervisors and managers to understand the relationship between the Americans with Disabilities Act (ADA) and HIV-infected employees is highlighted by the recent settlement between the Equal Employment Opportunity Commission (EEOC) and L&R Express Food Mart Inc., which runs a chain of convenience stores.

A Recent Case Study

The EEOC sued L&R on behalf of an employee who claimed that L&R fired him after discovering he was HIV-infected allegedly because the company feared sales would suffer if customers learned about the employee's medical condition. The settlement, which was announced in January, requires the company to pay $19,000 in damages to the employee and to designate and train, to the EEOC's specifications, an "Equal Opportunity Officer." The Equal Opportunity Officer will be responsible for implementing policies and procedures to ensure ADA com-pliance and for training all L&R supervisors and managers on the anti-discrimination provisions of the ADA and other discrimination laws. As part of the settlement, L&R must submit annual compliance reports to the EEOC.

Employee Rights

In the past, conflicting court opinions created confusion for employers about the rights of HIV-infected employees in the workplace. But recent decisions, often relying on the 2009 amendments to the Americans with Disabilities Act (ADA Amendments Act) and the Department of Justice's most recent publication on HIV in the Workplace called Questions and Answers: The Americans with Disabilities Act and Persons with HIV/AIDS (DOJ Guidance), have clarified the standards that HIV-infected employees must meet to prove they are disabled. Relying on these publications, courts are increasingly finding that HIV-infected employees qualify as disabled for ADA purposes. Moreover, courts now routinely hold that HIV-infected employees have a constitutionally protected right to privacy regarding their HIV status.

"Disability" Defined

The ADA Amendments Act significantly expands the definition of disability, making it easier for an employee to qualify as disabled under the ADA. A federal court in Illinois recently denied an employer's motion to dismiss an HIV-infected employee's claims, noting that the ADA Amendments Act "clarified that the operation of major bodily functions," including an individual's immune system, are "major life activities" under the ADA's definition of disability. Relying on this provision, the court concluded the employee's HIV status substantially limited the function of his immune system and therefore could qualify as a disability under the ADA.

The ADA Amendments Act also provides that an impairment that is episodic or in remission is a covered disability if the impairment would sub-stantially limit a major life activity when active. So, while the question of whether an employee who is HIV-infected is disabled is still decided on a case-by-case basis, employers should be aware that the ADA Amendments

Act make it more likely that an employee who is HIV-infected will qualify as disabled under the ADA and be entitled to its protections, as long as the employee can perform the essential functions of his or her position, with or without a reasonable accommodation.

Safety Risk to Others

What if an employer has concerns that an HIV-infected employee could pose a threat to co-workers or customers? In limited circumstances, the ADA permits an employer to consider health and safety when deciding whether to hire an applicant or retain an employee who has HIV. If the applicant or employee poses a significant risk to the health or safety of others, and the risk cannot be sufficiently reduced by reasonable accommodation, the employer may consider the individual's HIV status in taking an employment action. But an employer may not simply assume a threat exists. Instead, employers must use medically-supportable methods to prove there is a significant risk that substantial harm could occur in the workplace.

The DOJ Guidance concludes that "there is little possibility that HIV could ever be transmitted in the workplace" and suggests the transmission of HIV will rarely raise a legitimate direct threat issue. The Guidance explains that this is true because it is medically established that HIV can only be transmitted through sexual contact, exposure to infected blood, or perinatally - not through casual contact. Consequently, fear of transmittal generally will not justify an employer in refusing to hire or failing to retain an HIV-infected individual. Hospitals and other employers required to comply with the Occupational Safety and Health Administra-tion's bloodborne pathogens protocols are probably the employers most likely to be able to establish this defense.

Reasonable Accommodation

The ADA not only prohibits employers from taking adverse action against an applicant or employee based on his or her HIV status, but also imposes an affirmative obligation on employers to provide HIV-infected employees with reasonable accommodations. Because an employer is only required to accommodate a known disability, it is the employee's responsibility to request a reasonable accommodation. If the employee does not want to disclose that he or she has AIDS or is HIV-infected, it may be sufficient for the employee to describe the illness in general terms. If an employer has questions about a potential disability or an accommodation requested, an employer can require medical documentation of the employee's disability and the limitations resulting from that disability.

An employer is not required to make a requested accommodation if it would impose an undue hardship on the operation of the business. An undue hardship is an action that requires significant difficulty or expense in relation to the size of the employer, the resources available, and the nature of the operation. Significantly, the DOJ has taken the position that customer or co-worker attitudes are not relevant to the undue hardship analysis and that the potential loss of customers or co-workers because an employee is HIV-infected does not constitute an undue hardship.

After an employee begins work, a medical examination or inquiry of an HIV-infected 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. In the case cited above, the court allowed the employee to pursue an ADA violation under a theory of impermissible medical inquiry, where the employee alleged that the company's president demanded to know whether "something medical was going on," compelling the employee to disclose his HIV status.

Privacy Issues

As suggested above, in addition to discrimination and reasonable accommodation issues, employers with HIV-infected employees must be sensitive to privacy issues. Under the ADA, an employer may not make pre-offer inquiries about a disability or the nature or severity of a disability. The employer may of course ask questions about the ability to perform specific job functions and may condition a job offer on the results of a post-offer medical examination if the examination is required of all entering employees in the same job category. If an individual is not hired because a post-offer medical examination reveals a disability, the reason for rejection must be job-related and consistent with business necessity.

According to the DOJ, HIV status alone, without some accompanying complication such as dementia or loss of vision, can almost never be the basis for a refusal to hire after a post-offer medical examination. In addition, if an employer becomes aware of an employee's HIV status, whether inadvertently, as part of a medical exam or through an employee's voluntary disclosure, the ADA requires that the employer keep the medical information in a separate, confidential medical record file.

Conclusion

While advances in modern medicine allow many individuals with HIV to lead remarkably healthy lives, misinformation and stigmatization about the disease still persist and can often lead to unfounded fears and generalizations. Understanding what the ADA requires of employers with HIV-infected employees - and complying with the law - will help employers guard against expensive lawsuits, while also ensuring employees who live with this disease are able to work in an environment free from prejudice and hostility.

Note: After this article had gone to press, the EEOC issued its final regulations on the ADA Amendments Act. The final regulations, which become effective on May 24, 2011, assume that HIV infection will be found to be a disability because it substantially limits the immune system.