Phoenix Rising Re-Entry

The Americans with Disabilities Act (ADA)

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:

Disability

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

• hearing
• seeing
• speaking
• walking
• breathing
• performing manual tasks
• caring for self
• learning
• working

People infected with HIV, whether symptomatic, or asymptomatic, are currently covered under the ADA.

Qualified Employee

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

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.

Enforcement

The federal Equal Employment Opportunity Commission (EEOC) enforces employment provisions of the ADA and the Department of Justice enforces other provisions.

The Family and Medical Leave Act of 1993 (FMLA)

Covered reasons for leave include:

• A serious health condition that prevents performance of essential job functions
• Needing to care for a spouse, child, or parent with a serious health condition
• The birth of a child and care of a newborn
• Adopting or bringing a child from foster care

When you request a leave, your employer has the right to ask for documentation of your condition from a health-care provider. If your employer does not know you have HIV or AIDS, your health-care provider may not need to disclose it to them; check to see how much your employer must know about your medical condition. While you are on leave, you will not receive a paycheck, but your employer must continue your health-care benefits.

When you return to work, your employer is required to reinstate you to the original or an equivalent job with the same pay, benefits, and other terms and conditions of employment. If you are no longer able to perform an essential function of the job, reinstatement is not required unless a reasonable accommodation would enable you to do the job.

Further resources for the ADA and FMLA:

Equal Employment Opportunity Commission
www.eeoc.gov/
Phone: (800) 669 4000 or (800) 669 6820 (TTY)

U.S. Department of Justice
www.justice.gov/

Americans with Disabilities Act (ADA)
www.ada.gov/workta.htm

ADA Information Line, at the U.S. Dept of Justice
Phone: (800) 514 0301 or (800) 514 0383 (TTY)

Job Accommodation Network
Phone: (800) 526 7234 (voice/TTY)

Department of Labor—Home Page
www.dol.gov/

Department of Labor—Office of Disability Employment Policy (ODEP)
www.dol.gov/odep

Department of Labor - Family Medical Leave Act
www.dol.gov/agencies/whd/fmla/

The Rehabilitation Act of 1973