Can an employer consider health and safety when deciding whether to hire an applicant or retain an employee who has HIV/AIDS?
Yes, but only under limited circumstances. The ADA permits employers to establish qualification standards that will exclude individuals who pose a direct threat — i.e., a significant risk of substantial harm — to the health or safety of the individual or of others, if that risk cannot be eliminated or reduced below the level of a “direct threat” by reasonable accommodation. However, an employer may not simply assume that a threat exists; the employer must establish through objective, medically supportable methods that there is a significant risk that substantial harm could occur in the workplace. By requiring employers to make individualized judgments based on reliable medical or other objective evidence — rather than on generalizations, ignorance, fear, patronizing attitudes, or stereotypes — the ADA recognizes the need to balance the interests of people with disabilities against the legitimate interests of employers in maintaining a safe workplace. Transmission of HIV will rarely
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