July marks the 30th Anniversary of the ADA. What does that mean for PLHIV?

By Anne Kelsey Interim Staff Attorney
The ADA’s 30th birthday makes it a good time for a check in.

July marks the 30th Anniversary of the ADA. What does that mean for PLHIV?

Discrimination against people living with HIV is mostly based on stigma and significant ignorance rather than current knowledge about the routes, actual risks and current treatment realities of HIV transmission. Treating a person living with HIV as highly infectious or dangerous to have around -- acting on uninformed assumptions rather than the realities of the individual in front of you --  is a classic form of disability discrimination. The Americans with Disabilities Act (ADA) - the landmark civil rights law prohibiting discrimination based on disability – is one way to fight back against HIV discrimination.

People living with HIV or other chronic diseases may not think of themselves as having a disability, but HIV is actually a protected disability under the ADA, and therefore people living with HIV have rights under the ADA. The ADA’s 30th birthday makes it a good time for a check in.

What are some of the ADA’s protections?

Employment: People living with HIV can face significant discrimination in the workplace. Under the ADA, an employer cannot fire or refuse to hire a person because of their real or perceived HIV diagnoses. An employer may not deny or unfairly adjust wages, benefits, leave, training, job assignment, or any job-related activity as a result of an employee’s HIV status. In other words, HIV status alone is not a valid basis for limiting a person’s employment options. One thing to note, however, is that a private employer must have 15 or more workers to be covered by the ADA (so a small business, for example, may not be required to follow these rules). State and city laws may provide additional protections though, so even if a small business permits discrimination you may find protection in other laws.

The ADA goes beyond prohibiting discrimination – employers must also make “reasonable accommodations” to allow qualified employees with HIV-related conditions or other disabilities to perform job tasks. Examples of possible modifications include rest breaks or modifying work schedules for persons who are fatigued as a result of HIV or allowing for doctor’s appointments. Any HIV-related information disclosed as part of the reasonable accommodation process must be kept strictly confidential.

“Public Accommodations” A public accommodation is a private entity open to the public, such as restaurants, doctor’s offices, health clubs, retail stores, and day care centers. The ADA requires public accommodations to provide equal access and equal opportunity to people living with HIV. Some examples of prohibited discrimination are:

- A dentist who refuses to treat a PLHIV, or will only treat PLHIV at certain times of the day or in a hospital setting.

- A health club that charges extra fees to a PLHIV, or that prohibits PLHIV from using the steam room or sauna.

- A day care center that refuses admission to children living with HIV or the children of parents living with HIV.

People living with HIV may also have other disabilities as well that public accommodations must accommodate. For example, if a PLHIV also uses a wheelchair, a store may be required to have a ramp at the door or remove other physical barriers.

One more thing: “Regarded as” and “associational”protections

The ADA also protects people “regarded as” having a disability or who are “associated with” someone who has a disability from discrimination. For example, a person who was fired because of a rumor that he has HIV, even if he does not, would be protected by the law. The ADA also protects an HIV-negative woman who is denied a job because her husband is living with HIV. Or as in the example above about the day care center, if a day care center refused to admit the child of a parent living with HIV, that is prohibited discrimination against the child based on the parent’s diagnosis. So if you are reading this as a friend or loved one of a person living with HIV, keep in mind that you have rights here too.

What about COVID-19?

In the 30 years since the signing of the ADA, the reach of the ADA has grown with the developing forms of “public accommodations.” The ADA covers the internet and web-based businesses, it reaches new businesses like Uber and Lyft, and much more. It also reaches life in the time of COVID, especially since people with some kinds of disabilities or with chronic diseases are more vulnerable to COVID.

ALERT: Proposed “Safe to Work Act” could suspend anti-discrimination and worker protection laws until 2024 as they relate to coronavirus

Earlier this week Senator John Cornyn (R-Texas) and Senate Majority Leader Mitch McConnell, (R.-Ky.) introduced the so-called “Safe to Work Act,” which purports to provide liability protection from coronavirus-related claims for public accommodations and workplaces like businesses, schools, nonprofit organizations, nursing homes, and hospitals. What this blanket immunity bill would actually do is protect corporations at the expense of individual Americans - workers, consumers, students, and individuals with disabilities.

A few of the things the bill would do to prevent individuals from bringing lawsuits to enforce or protect their rights during the time of coronavirus:

● Preempts state laws across the country that are more protective of health and safety, except those favoring businesses.

● Limits damages and discovery, heightens pleading standards, and requires demand letters

● Suspends application of federal employment laws in relation to coronavirus so long as the business “attempts” to follow federal “guidance.” More specifically, businesses cannot be held accountable for violating federal employment laws (Occupational Safety and Health Act, the Fair Labor Standards Act, the Americans with Disability in Education Act, the Americans with Disability Act, Title VII of the Civil Rights and several other statutes).

● Provides immunity for healthcare providers, hospitals, and nursing home corporations against claims by all patients in their facilities (not just coronavirus patients) until 2024 unless the patient can prove “willful misconduct” or “gross negligence.”

As the American Association for Justice puts it: “The “Safe to Work” Act is an extreme bill that goes well beyond any COVID-19 liability proposal passed in any state. It layers needless requirements and excessive burdens solely onto individuals who have been hurt, discriminated against, or killed through no fault of their own. The bill is so expansive and severe that it marks the end of accountability for all businesses insofar as COVID-19 infections and deaths are concerned.”

Disability and other civil rights advocates are hard at work challenging this proposed legislation, and CHLP will continue to track this bill.

Healthcare rights

Civil rights laws like the ADA, Section 504 of the Rehabilitation Act, and Section 1557 of the Affordable Care Act remain in effect during the coronavirus pandemic to prevent discrimination based on disability, including HIV status, in health care.

These laws require equal treatment and access to services and programs. Reasonable modifications may have to be made to provide that equal treatment and equal access. Beyond just direct discrimination (“we don’t serve people who use wheelchairs here”), the use of “criteria” or “methods of administration” that have the effect of discriminating are also prohibited. So blanket policies that end up harming people with disabilities can also be challenged.

Lastly, health care decisions about treatment have to be based on individualized assessments with available current objective medical evidence. They cannot be based on assumptions, stereotypes, or quality of life judgments.

The Department of Justice provides more information and examples of reasonable accommodations here. You can find more on CHLP’s work on medical rationing in triage decisions here.

Masks:

You may have seen people claiming that the ADA protects their right to not wear masks even when city or store specific rules require them. This is not correct – as the Department of Justice states clearly, “the ADA does not provide a blanket exemption to people with disabilities from complying with legitimate safety requirements necessary for safe operations.”

There are some disabilities that make it difficult or impossible for a person to wear a mask. However, the solution is not to go maskless and potentially endanger others. Instead, government agencies and private businesses must offer “reasonable modifications” to their face mask policy so that the person with the disability can participate in, or benefit from, the programs offered or goods and services that are provided. Examples of accommodations include curbside pickup or home delivery. However, businesses may not have to offer services if it is a fundamental change in the business model, it creates an undue burden or if a person poses a direct threat to the health of others.

As a final reminder, these requirements to provide accommodations or modifications to policies, practices, or procedures do not include individuals without disabilities, as they are not protected under the ADA.