Fair Employment and Housing Act
California law recognizes AIDS as a disability, which may require an employer to provide reasonable accommodation to enable the employee to continue working as long as he/she is medically able.
Employees who are perceived as having AIDS or who have been medically tested as HIV positive are also protected (complaints from people who have a terminal illness are processed by the Department on a priority basis).
Company policy should state that an employee with AIDS or an HIV positive diagnosis will be treated the same as any other employee with a life-threatening ailment. They may continue to work as long as they are able and medical evidence indicates that they are not a danger to themselves or others.
It is extremely important that employers allay fear by communicating authoritative information on AIDS transmission; i.e., that there is no known risk of AIDS transmission between an affected employee and other employees while engaged in their normal activities which may involve close contact at work.
In general, California law prohibits discrimination against people with disabilities. An employer who discriminates against a person because of his/her disability may do so only if the employer can demonstrate that:
- The person is unable to perform the essential functions of the job; and that no reasonable accommodation exists that would enable the person to perform the essential functions of the job
- The person would create an imminent and substantial danger to himself/herself or a substantial danger to others by performing the job; and that no reasonable accommodation can be made to remove or reduce the danger.
The following two reasons are not legally acceptable excuses for discrimination:
- There is a possibility of future harm to the person or to others
- That employing individuals with a disability will cause an employer's insurance rates to rise
Independent Medical Opinion
If an employer decides not to hire or promote an applicant because of his/her disability, then the employer must allow the applicant the opportunity to submit an independent medical opinion. Failure to allow the submission of an independent medical opinion may be a separate violation of the law.
Med. Evaluation of Applicants & Employees
California disabilities law restricts the use of a job applicant's medical information
Under the Fair Employment and Housing Act, medical examinations of applicants are only allowed after a conditional job offer has been made. Post-offer medical examinations are permissible only where all entering employees in similar positions are required to submit to such exams and the results are treated as confidential medical records and maintained on separate forms. In addition, pursuant to Government Code section 12940, subdivision (e)(3), no post-offer pre-employment inquiry is permitted unless it is directly related to and pertinent to the position being applied for or directly related to whether an individual would endanger himself/herself or others.
Persons must not be excluded from a job because of a generalization about any disability. Each person must be judged solely on whether his/her particular medical history and condition presently prevents him/her from performing the job safely and efficiently. Any medical standard or employment policy which automatically excludes entire groups of people (such as all people with high blood pressure, diabetes, AIDS, or back problems) is usually improper.
It is further an unlawful employment practice for an employer or other covered entity to subject, directly or indirectly, any employee, applicant, or other person to a test for the presence of a genetic characteristic.
When interviewing job applicants, employers may not ask (verbally or on an employment application) questions about the applicant's health or medical history. Employers may ask about an applicant's ability to perform specific tasks. Also, employers may not inquire whether the applicant has ever filed a Workers' Compensation claim.
When an employee has a disability, the employer must explore all possibilities of reasonable accommodation prior to rejecting the person for a job or making any employment-related decision. An accommodation is reasonable if it does not impose an undue hardship on the employer's business. Reasonable accommodation can include, but is not limited to, the following:
- Changing the job duties
- Changing the work shift
- Providing leave for medical care
- Accommodating work schedules
- Relocating the work area
- Providing mechanical or electrical aids
An employer may obtain help from government agencies and outside experts to determine whether accommodation is possible.
Disabled employees may have separate rights to unpaid leave under the Federal Family and Medical Leave Act or the California Family Rights Act.