Under the ADA (which applies to employers who have 15 or more employees) prior to employment, an employer cannot ask questions that are aimed at determining whether an employee has a disability.
Examples of prohibited pre-employment questions are:
· Have you ever been hospitalized?
· Have you ever been on workers’ compensation or disability insurance?
· What medications do you take?
After the employee has been given a conditional offer of employment, an employer may require a physical examination or medical history. The job offer, however, may not be withdrawn unless the results demonstrate that the person cannot perform the essential functions of the job with or without reasonable accommodation (more about reasonable accommodation later). The same inquiries must be made of each person in the same job category. In addition, the physical examination and medical history records must be segregated from the personnel records, and there are strict confidentiality protections. After employment has begun, the ADA permits an employer to only require a physical examination if it is job-related and consistent with business necessity.
Employees who have a disability covered by the ADA, such as HIV, may request from the employer an adjustment of job requirements or workplace policies in order to perform the job duties—this is called requesting a “reasonable accommodation.” Examples include:
· Modifying or changing job responsibilities
· Establishing a part-time or modified work schedule
· Permitting time off for medical appointments
· Reassigning an employee to a vacant job
There is no fixed set of accommodations that an employee may request—it will depend on the employee’s particular circumstances. The employee must make a formal request for an accommodation. The employer is not required to grant the employee’s request if it will create an “undue burden” on the employer. Obtaining a reasonable accommodation is a negotiation between the employee and employer to find a work adjustment that will allow the employee to perform his or her duties. An employer does not have to retain or hire an employee who cannot perform the essential functions of the job even with a reasonable accommodation.
In addition to the ADA, many states have added protections for persons with disabilities.. If you are HIV+ or have another disability covered by the ADA and live in New England, please contact GLAD’s Legal InfoLine at 800-455-GLAD (4523) to obtain detailed information about your rights under both the ADA and state law.
Listen to our podcast on the landmark case Bragdon v. Abbott, including interviews with Abbott and Klein.