Reprinted with the permission of Aspen Publishers, from AIDS and the Law, Fourth Edition, 2008-2010, www.aspenpublishers.com

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] ADA Amendments Act of 2008

[1] Legislative Summary

[2] Legislative History

[E] 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

[F] 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

[G] Requirement of Reasonable Accommodation

[1] Employee’s Duty to Request Accommodation

[2] Limitations on Employers’ Duty to Accommodate

[H] Employer Inquiries and Tests for HIV

[1] Pre-Employment Inquiries and Examinations

[2] Employer Inquiries and Examinations of Employees

[3] Employer Duty of Confidentiality

[I] 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