HIV infection is a disability under the ADA. What rights and responsibilities does an employer have in relation to HIV-positive applicants and employees? The EEOC recently clarified its position concerning HIV-positive individuals in the workplace in a press release, as well as documents addressing the rights of HIV-positive workers, including the right to be free from discrimination and harassment, and guidance to physicians in facilitating accommodations for those individuals.
On May 17, 2016, the U.S. Equal Opportunity Commission (EEOC) issued an ADA Final Rule amending applicable regulations and interpretive guidance implementing Title I of the Americans with Disabilities Act (ADA), and a GINA Final Rule, under Title II of the Genetic Information Nondiscrimination Act (GINA), clarifying how the ADA and GINA Rules apply to employer wellness programs. In addition, the EEOC issued a Q & A document for each new rule, ADA Rule Q & A and GINA Rule Q & A, addressing key questions about each rule’s applicability and implementation.
The Americans with Disabilities Act Amendments Act (“ADAAA”) sought to broaden the scope of protection for disabled individuals which had been available under the Americans with Disabilities Act (“ADA”) by expanding the definition of “disability.” “Disability” is defined under both the ADA and ADAAA as “(i) a physical or mental impairment that substantially limits one or more of a person’s major life’s activities; (ii) a record of such impairment; or (iii) a condition regarded as an impairment.” Subsequent to the passage of the ADAAA, the Equal Employment Opportunity Commission (“EEOC”) issued regulations to provide guidance under the Act. According to these regulations, the “definition of the term ‘impairment’ does not include physical characteristics such as …weight… that are within the ‘normal range’ and are not the result of a physical disorder.”
The Americans with Disabilities Act (“ADA”) provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Discrimination includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless the covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity. . . .” 42 U.S.C. § 12112(b)(5)(A).
When dealing with their employees’ needs for accommodations due to religious, disability, or family leave reasons, it’s necessary for employers to know some personal information about their employees. But, simply asking for information can be considered a violation of certain employment laws. What’s an employer to do?
Recently, the EEOC issued a Notice of Proposed Rulemaking (NPRM) which would amend the regulations implementing Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) as they relate to employer wellness programs that are part of group health plans. This NPRM related to GINA is an encore, of sorts, to the regulations the Commission proposed earlier this year in the area of wellness programs as they related to the Americans with Disabilities (ADA) Act.
According to a 2011 publication of the Centers for Disease Control and Prevention (CDC), “Mental illnesses account for a larger proportion of disability in developed countries than any other group of illnesses, including cancer and heart disease.” The study noted that an estimated 25% of adults self-reported a mental illness at a projected economic cost of $300 billion as of that date.
I was recently asked if an employer has to assign a qualified employee with a disability to a vacant position as part of the employer’s duty to reasonably accommodate the disability. The employer believed that, if he had a vacant position and the disabled employee was qualified for it, he had to give the job to that employee. While reassignment to a vacant position may be a reasonable accommodation under the ADA, there is no requirement that you must reassign the employee. Let’s see if we can clear up this misconception.
In a recent decision, Jacobs v. N.C. Administrative Office of the Courts (“AOC”), the Fourth Circuit reinstated a disability discrimination lawsuit filed by a court clerk terminated three weeks after requesting an accommodation for her social anxiety disorder.