The Americans with Disabilities Act (ADA)
The Americans with Disabilities Act (ADA) is a federal civil-rights law that protects people with disabilities in a range of situations, including employment. The law applies to workplaces with more than fourteen employees and covers private businesses, public agencies, nonprofit and labor organizations. In cases where the ADA does not apply, state law may apply.
Under the ADA it is illegal for an employer to discriminate against an employee on the basis of an actual or perceived disability if a person can perform the essential functions of the job (a qualified employee). The ADA also prohibits discrimination against someone because a family member or someone they have a relationship with has, or is perceived to have, a disability.
ADA employment provisions include:
Having, or being perceived to have a disability, is a precondition for legal protection. The ADA defines disability as a substantial impairment that limits a major life activity, such as
- performing manual tasks
- caring for self
People infected with HIV, whether symptomatic, or asymptomatic, are currently covered under the ADA.
To receive protection under the ADA, you must be qualified for the job. This means that you must meet the basic skill, education, and experience requirements. You must also be able to perform the essential job functions with or without a reasonable accommodation (a modification to the job or workplace).
Job Interview, Selection, and Hiring Process
The ADA has specific guidelines for employer behavior during the hiring process.
A prospective employer can:
- ask if you are able to perform the essential duties of the job with or without reasonable accommodation
- ask you to take a medical examination after you have been offered a job only if this is a requirement for all new workers in the same job classification
- choose not to hire a person because they are not qualified for the job
A prospective employer cannot:
- ask if you have a disability or ask about the nature or severity of your disabling condition
- ask about your immune status or whether you are symptomatic or asymptomatic
- require you to take a medical test or an HIV-antibody test before you are offered the job
- disqualify you based on information revealed by a medical examination, unless the reasons are job related
- refuse to hire a qualified employee because his or her disabling condition requires a reasonable accommodation
A reasonable accommodation is a change in a job or work environment that would enable a qualified employee with a disabling condition to perform the essential tasks of a job. An employer is required to offer a reasonable accommodation for conditions of known disability unless it is unduly costly, extensive, or would fundamentally alter the business operation.
Reasonable accommodations take many forms, such as changing a work schedule to fit an employee's drug regimen and medical appointments. If you think you might benefit from an accommodation, first evaluate whether you are ready to disclose your HIV status. Before you speak with your employer, get an idea of what changes could be made to your job or workplace.
Medical Records and Confidentiality
Employee medical records are confidential; each employee’s records must be filed separately. Human resources personnel, supervisors, union representatives, and others who need to know about an employee's medical condition, are legally obligated to keep the information confidential. This is especially true if they ask you about your health condition, without you having volunteered the information. You are in the strongest legal position if you specifically ask such people not to share knowledge of your medical condition with others.
The federal Equal Employment Opportunity Commission (EEOC) enforces employment provisions of the ADA and the Department of Justice enforces other provisions.