AIDS and the Law, Fourth Edition
Chapter 3: HIV and Employment
David W. Webber
§ 3.01 Introduction
[A] Public Health Policy and HIV/AIDS Employment Law
[B] Workplace HIV/AIDS Education Programs
§ 3.02 Americans with Disabilities Act of 1990
[A] Title I Employment Discrimination
[1] Definition of Covered Entity
[2] Definition of Employee
[3] Definition of Discrimination
[4] Discrimination Based on Relationship or Association
[5] Protection from Retaliation
[B] Title II Employment Discrimination by Public Entities
[C] Legislative History in Regard to HIV
[1] Legislative Precursors to the ADA
[2] Congressional Consideration of the ADA
[a] The Food Handling Controversy
[b] The Hatch Amendment
[3] Judicial Disregard for the ADA Legislative History
[D] Definition of Disability
[1] HIV as a Disability Per Se
[2] HIV as an Impairment
[3] Major Life Activities
[a] Reproduction and Sexual Functioning
[b] Social Functioning and Participation
[c] Caring for Oneself
[d] Working
[e] Other Major Life Activities
[4] HIV Infection as a Substantial Limitation
[5] Plaintiffs’ Personal Choices as Defining Disability
[6] Mitigating Measures as Affecting Disability
[7] Enforcement Agency Regulations
[8] Record of Disability
[9] Regarded as Disabled
[a] Treated as Having a Disability
[b] Judicial Narrowing of the Regarded-As Prong
[i] Proof of Perception of Disability Requirement
[ii] Application of the More-Than-One-Job Rule
[E] Title I Definition of Qualified Individual
[1] Defining Essential Job Functions
[2] Determining Employee or Applicant Ability to Perform Job Functions
[3] Disability Benefits Claim Estoppel
[F] Requirement of Reasonable Accommodation
[1] Employee’s Duty to Request Accommodation
[2] Limitations on Employers’ Duty to Accommodate
[G] Employer Inquiries and Tests for HIV
[1] Pre-Employment Inquiries and Examinations
[2] Employer Inquiries and Examinations of Employees
[3] Employer Duty of Confidentiality
[H] Employer Defenses
[1] Job-Related Application or Qualification Standards
[2] Direct Threat Defense
[a] School Board of Nassau County v. Arline
[b] Civil Rights Restoration Act of 1987
[c] Congressional Consideration of Direct Threat and the ADA
[d] EEOC Regulation on Direct Threat
[e] Direct Threat as Not Limited to Others in the Workplace
[f] Direct Threat in the Context of Food Handling
[g] HIV-Positive Health Care Workers and Risk of Transmission
[i] CDC “Exposure-Prone Invasive Procedure” Guideline
[ii] Congressional Delegation of Policy-Making to CDC
[h] Direct Threat Defense in the Courts
[i] Bragdon v. Abbott
[3] Defense of Nondiscriminatory, Non-Pretextual Decision
[J] Enforcement and Remedies
[1] Administrative Exhaustion Requirement
[2] Attorney's Fees
§ 3.03 Rehabilitation Act of 1973
[A] Summary of Coverage
[1] Section 501
[2] Section 503
[3] Section 504
[B] Shared Definitions Under Rehabilitation Act and ADA
[C] HIV Infection as Disability
§ 3.04 Family Medical Leave Act
[A] Medical Leave Rights
[1] Employers Covered
[2] Eligibility for Leave: Serious Health Condition
[3] Definition of Family Member
[B] Requesting and Documenting FMLA Leave
[C] Employers’ Duty to Provide FMLA Notification
[D] Enforcement and Remedies
§ 3.05 HIV/AIDS and the Armed Forces
[A] Department of Defense Policy
[B] Limitations on Use of HIV-Related Information
[C] Civilian Employees of DOD
§ 3.06 Constitutional Rights and HIV in the Workplace
[A] Constitutional Privacy Rights and HIV Policy
[B] Equal Protection Rights and HIV Policy
§ 3.07 State and Local Employment Standards
[A] Overview of State and Local Standards
[1] State Pre-Emption of Local Legislation
[2] Voter Referendum Challenges to Local Legislation
[B] State and Local Statutory Claims
[1] Private Cause of Action
[2] Availability of Remedies
[3] Administrative Agency Exhaustion Requirements
[4] Exclusivity of Remedies
[5] Definition of Discrimination
[6] Persons Protected
[7] Workplaces Covered
[8] Choice of Forum
[9] Statute of Limitations
[10] Disclosure of Information
[11] Sexual Orientation Discrimination
[C] Common Law and Related Causes of Action
§ 3.08 Workplace Safety Standards
[A] HIV as a Workplace Hazard
[B] Occupational Safety and Health Administration Standards
[1] Regulatory Background
[2] OSHA Universal Precaution Standard
[a] American Dental Association v. Martin
[b] Needlestick Safety and Prevention Act
[C] State Regulation of Workplace Safety
[1] State Needle Safety Legislation
[2] Sex Work and HIV Safety Standards
[D] Employee's Right to Know versus Confidentiality Standards for HIV
[E] Testing and Disclosure of Patient's HIV Status after Occupational Exposure
[1] OSHA Regulation Post-Exposure Requirements
[2] Federal Disclosure to Emergency Response Employee Requirements
[F] Employer Liability Resulting from HIV Safety Issues
[1] Liability for Discriminatory Employee Actions
[2] Wrongful Termination for Refusal to Work
[3] Wrongful Termination for Reporting Employer OSHA Violations
[4] Worker Compensation Claims
[5] Employer Liability to Third Parties
