The Americans with Disabilities Act (ADA) protects individuals with disabilities from workplace discrimination. Someone is considered as having a disability if they have a physical and mental impairment that substantially limits major life activities. HIV, either asymptomatic or symptomatic, is considered a physical impairment that limits one or more major life activity and is therefore protected under ADA.
Recently an article in The Wall Street Journal featured an inquiry from a flight attendant with HIV seeking an accommodation to avoid coming into close contact with travelers because of potential covid exposure, which can be more severe, if not deadly, for those with a compromised immune system. Although protections exist for employees with HIV, the situation underscores that fact that accommodations only go so far.
First consider that to be protected under the ADA, an employee must be qualified to perform essential duties of a job, with or without reasonable accommodation. Essential functions are the fundamental job duties that an employee was hired to perform. In the case of the flight attendant interacting with customers — serving beverages, answering inquiries, and preparing the cabin — are essential duties of the job thereby limiting the potential accommodations. Without an accommodation, the employee may have to quit or the airline may terminate employment if essential duties cannot be performed.
However, that said, some options may exist for the employer and employee to explore. It may be that a medical leave of absence can be granted with or without pay to hold the job until the pandemic winds down or a vaccine becomes available. It may also be possible to reassign a flight attendant to another position within the airline that reduces customer contact, eyes open to the fact it may not come with the same pay or that the previous position may not be restored when they accept alternate employment with different essential duties.
To seek an accommodation for a disability under the ADA, the employee in this case must reveal the fact that they have HIV as part of the interactive process. Employees who are HIV positive may be concerned about revealing their health status to their employee fearing a lack of discretion or retaliation, however, the law not only requires that employers keep employees medical information confidential but also forbids discrimination based on an employee’s disability. An employer’s failure to follow the law can be grounds for an employment discrimination lawsuit.
The Civil Rights Act of 1964, Title VII, prohibits discrimination on the basis of protected classes: race, color, religion, sex (including sexual orientation) national origin and physical and mental disability.
If you have suffered discrimination, harassment or retaliation in the workplace, it is important to seek the help of an experienced Iowa employment discrimination attorney. Marc A. Humphrey is a renowned trial lawyer with more than three decades of experience. Call 515-331-3510 for a free consultation or submit our contact form.
Source: WSJ, “Your Job Rights During Coronavirus if You Have Vulnerabilities An HIV-positive flight attendant can legally argue for an ‘accommodation,’ but the airline’s rights are broad, too”, L. Weber, August 9, 2020
