Wednesday, December 2, 2015

Does the ADA protect Charlie Sheen? You bet.

Perhaps it’s a coincidence that the EEOC released guidance on the ADA’s protection of HIV-positive employees within two weeks of Charlie Sheen announcing his diagnosis. Or, perhaps the EEOC seized on an opportunity to spread awareness about an important issue.

Regardless, yesterday the EEOC published information on the legal rights of employees living with HIV.

Most importantly, employers need to understand that the the ADA makes no distinction between an employee who has asymptomatic HIV and one who suffers with the AIDS virus. An employer cannot discriminate against an employee because of one’s HIV status, and an employer must make reasonable accommodation, if necessary, to enable that employee to perform the essential functions of the job.

The EEOC’s publications — Living with HIV Infection: Your Legal Rights in the Workplace Under the ADA and Helping Patients with HIV Infection Who Need Accommodations at Work — provide important information for employers and employees about the ADA’s legal protections for HIV-positive employees.

1. Employee are not obligated to disclose their diagnosis to their employer. Moreover, the ADA prohibits an employer from asking, unless:

  • The employer is asking for a voluntary disclosure for affirmative action purposes.
  • The employee asks for a reasonable accommodation.
  • It’s part of a pre-employment, post-offer conditional medical inquiry, as long as the employer asks everyone entering the same job category the same questions.
  • On the job, if the employer has objective evidence that the employee may be unable to do the job or may pose a safety risk because of the condition.

2. An employee may be entitled to a reasonable accommodation if the HIV infection, the side effects of HIV medication, or another medical condition that has developed because of HIV negatively impacts an employee’s job performance. Once an employee requests a reasonable accommodation, the employer must engage in an interactive process to determine which accommodation, if any, will permit the employee to perform the essential functions of the job.

3. The ADA prohibits an employer from discriminating against an employee simply because of an HIV infection. This discrimination includes firing the employee, rejecting the employee for a job or promotion, and forcing the employee to take a leave of absence.

4. An employer can consider health or safety when deciding whether to hire an applicant or retain an employee with HIV, but only under limited circumstances. The ADA does not protect employees who pose a direct threat—a significant risk of substantial harm—to the health or safety of the individual or to the safety of others, if that risk cannot be eliminated or reduced below the level of a “direct threat” by reasonable accommodation. The employer, however, must establish, through objective, medically-supportable methods, that there exists a significant risk that substantial harm could occur in the workplace. According to the EEOC, “Transmission of HIV will rarely be a legitimate ‘direct threat’ issue,” because “there is little possibility that HIV could ever be transmitted in the workplace.” What could an HIV-related direct threat look like? According to the EEOC:

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 (e.g., an open position to which the employee could be reassigned), the employer would likely not violate the 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.

5. The ADA also protects disabled employees (including those with HIV) from harassment. If an employee complains about such harassment, you must treat it like any other harassment complaint—investigate and take prompt and reasonable corrective action to protect against the harassment continuing.

I’ll leave you with this thought. We have come a long way since the early days of AIDS, when ignorance labeled it “Gay Cancer”. Nevertheless, HIV and AIDS still carry a certain stigma, which employers must avoid. In the EEOC’s words:

Your employer cannot rely on myths or stereotypes about your condition to conclude that you are unable to do your job or pose a safety risk…. [T]hey cannot rely on myths or stereotypes about HIV infection when deciding what you can safely or effectively do. Before an employer can reject you based on your condition, it must have objective evidence that you are unable to perform your job duties, or that you would create a significant safety risk, even with a reasonable accommodation.