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McDonald’s Franchisees Settle Disability Discrimination Suit For $103K After Terminating HIV-Positive Employee

Published by on December 9, 2016

Employers should be aware of the anti-discrimination laws that apply to employees with HIV and AIDS.

On July 1, 2016, the EEOC brought a case against owners of a McDonald’s franchise in Bentonville, Arkansas in the U.S. District Court for the Western District of Arkansas following a termination of an employee with HIV. The anonymous employee alleged the franchisees, Mathews Management and Peach Orchard Inc., violated the Americans with Disabilities Act of 1990 (“ADA”), the ADA Amendments Act (“ADAAA”), the Civil Rights Act of 1991, and the Arkansas Civil Rights Act by terminating him due to his HIV-positive status and for requiring employees to disclose their prescription medications. The employee alleged that in a discussion with his supervisor regarding his attendance, the supervisor asked him if he was HIV positive and he responded affirmatively. The employee also alleged the franchisees built a fake discipline file against him with incidents that never occurred to aid in his termination. The complaint alleges the store had a policy that required employees to submit in writing the use of any physician-prescribed medications and to identify the medications used. Without admitting wrongdoing, the franchisees settled the case for $103,000 and agreed to provide employee training on the ADA, to report names of trained employees to the EEOC, and to reform its medication reporting policy.

HIV / AIDS Is A Disability Under The ADA And ADAAA

The ADA applies to employers with 15 or more employees and protects people who have, or are perceived to have, disabilities, which are defined as psychical or mental impairments that substantially limit one or more major life activities. The ADAAA expanded the definition of “disability.” People living with HIV and AIDS are generally considered to have a disability, and are thus protected from discrimination under the ADA. People who are perceived to have HIV or AIDS, even if they do not, are also protected. Moreover, the ADA also protects persons discriminated against because of their relationship or association with someone with HIV or AIDS. Therefore, it is illegal for covered employers to discriminate against people with HIV or AIDS in hiring, firing, job application procedures, job assignments, training, promotions, or any other term or condition of employment. For example, an employer could not chose not to hire an employee because the employer fears the employee will become too ill to work or will raise medical insurance or worker’s compensation costs.

The ADA also requires employers to provide disabled employees with reasonable accommodation. This means employers may be required to modify job functions to allow the employee to perform the essential functions of the position or otherwise enjoy the benefits and privileges of employment. Such accommodations could include: restructuring the employee’s work schedule to allow for regularly scheduled medical visits, providing seating to employees with difficulty standing, providing extra rest breaks for employees who tire easily, providing extra unpaid leave for hospitalization, allowing home-based work for people who feel too ill to come into the office, or installing a ramp for use with an electric scooter. An employer is not required to make an accommodation if it would cause the employer undue hardship, meaning it would require significant difficult or expense when considering the size, resources, and nature of the employer’s business.

If an employer is aware that an employee is HIV positive or has AIDS, the ADA requires this information to be kept confidential. This means the information must be kept separate from the employees general personnel file and may only be accessed in limited circumstances.

Unlawful Medical Inquiries

Under the ADA, covered employers are prohibited from making inquiries into whether a job applicant or employee is an individual with a disability or the severity of such disability. These types of medical inquiries include questions such as: asking about an employee’s genetic information; asking employees whether they are taking, or have taken, prescription medications; or asking about employees’ prior workers’ compensation history. Permissible questions include: asking general questions about employee well-being (e.g. asking an employee who appears ill if he or she is okay); asking a pregnant employee how she is feeling and when she is due; asking about the current use of illegal drugs, or asking whether an employee has been drinking. Importantly, employers may make inquiries into an applicant’s ability to perform job-related functions if consistent with business necessity.

Welter Insight

Employers should be aware that employees and job applicants with HIV and AIDS are generally protected by the ADA and other federal and state anti-discrimination laws. Therefore, employers should take care to ensure their workplace policies do not discriminate against job applicants or employees with HIV or AIDS. Additionally, employers should engage in good faith discussions with employees about what accommodation their employees with HIV and AIDS need to perform their job. Unless it is directly related to the employee’s performance of the job, employers should avoid adopting policies that require the disclosure of medical information, such as use of prescription medications.

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