Is HIV a disability under the Americans with Disabilities Act?

Can you be fired or denied employee benefits because you have HIV? Does your employer have any obligations towards its employees with HIV?

In 1990, Congress passed the Americans with Disabilities Act (ADA) which protects employees from being discriminated against because of their disability. This means that an employer cannot discriminate against a qualified individual on the basis of his disability when it comes to hiring, firing, promotion, and pay. So, an employer cannot deny job benefits to a disabled employee or create tests that screen out otherwise qualified but disabled individuals.

The ADA also requires employers to make reasonable accommodations for disabled employees so that they can perform their jobs.

The ADA covers employers with fifteen or more employees, and, like most federal employment statutes, only applies to employees and not independent contractors. An employee is an individual that the employer has the right to control.

If an employee believes that he has been discriminated against on the basis of his disability, he must show that he has a disability as defined by the ADA, that he was otherwise qualified for the position, and that his employer failed to make a reasonable accommodation.

To qualify as a disability, HIV must be a physical impairment that substantially limits a major life activity. The Equal Employment Opportunity Commission (EEOC) defines a physical impairment as “any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory, cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine.” HIV easily falls within this definition of physical impairment—it is a physiological disorder that affects the immune system.

An impairment is substantial if it makes a major life activity more difficult, more painful, or more time-consuming to perform than the general population. An impairment may also be substantial if it prevents the disabled person from enjoying that major life activity as long as the general population would. HIV also meets the test here. Employees with HIV must take time out of their day to recover from treatment and take medication. They may require doctor-ordered bed rest, or their symptoms may make it physically difficult to perform their jobs.

Because HIV is a disability under the ADA, employees with HIV are protected from discrimination and their employers must provide them with reasonable accommodation. Thus, an employee cannot be fired because of his HIV, he cannot be paid less because of his HIV, nor can he be denied healthcare benefits because of his HIV.

Reasonable Accommodation

An accommodation must enable a qualified, disabled employee to perform the essential function of his job. This may include changes to the job application process, changes to the work environment or job requirements, or changes to employee benefits. For example, a reasonable accommodation is making facilities accessible and usable by disabled employees. Similarly, an employer may restructure the job or make changes to the work schedule to accommodate a disabled employee. Regardless of the accommodation, the goal of the ADA is to require employers to provide an environment where disabled individuals can compete on equal footing with non-disabled individuals. Common accommodations include job restructuring, transfers to other positions or light duty, and leaves of absence.

For an employee with HIV a reasonable accommodation might be allowing the employee with no sick leave to take additional unpaid leave for monthly doctor’s visit. If an employee with HIV has trouble standing for long periods of time, an employer should be able to accommodate her by providing a chair to take breaks in. Similarly, working from home may be a reasonable accommodation if HIV medication cause an employee to battle continuous bouts of nausea.

Reasonable accommodations for HIV are not limited to those listed above. Instead, as with any disability, a reasonable accommodation for an employee with HIV is one that enable him to perform the essential functions of his job.

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