NEW U.S. SUPREME COURT DECISION WILL IMPACT EMPLOYERS ON ADA ISSUES
(1998)

This summer the United States Supreme Court issued a long-awaited ruling in Bragdon v. Abbott, holding that people with the HIV virus are protected by the Americans With Disabilities Act (the "ADA"). This is only the second time that the Court has ruled on an ADA issue.

This case arose when a dentist in Maine refused to fill a patient's cavity. The patient was HIV-positive, but was not suffering from any of the symptoms associated with blown-full AIDS. The dentist was concerned about contracting the virus. He offered to treat his patient at a hospital but at the patient's expense. The patient refused and filed suit, alleging that the dentist discriminated against her because she was HIV-positive.

In order for a disease to be considered a disability under the ADA, it must substantially limit one or more "major life activities" of an individual. Abbott asserted that the HIV virus limited her ability to bear children, which she said was a "major life activity."

The Supreme Court had no trouble concluding that HIV-positive status was a physical impairment. After describing the common progression of HIV infection to full- blown AIDS and eventual death, Justice Kennedy wrote, "[i]n light of the immediacy with which the virus begins to damage the infected person's white blood cells and the severity of the disease, we hold it is an impairment from the moment of infection." The Court also held that the reproduction of life was a major life activity within the meaning of the ADA, finding that "[r]eproduction and the sexual dynamics surrounding it are central to the life process itself." Justice Kennedy also indicated that he believed many different major life activities could be considered limited by a person's HIV-positive status.

The impact of the Supreme Court's decision in Bragdon is considerable, since the decision affects not only those with HIV, but also their employers. There will likely be an increase of incidences in which HIV-positive employees request a "reasonable accommodation" for their disability to which employees may be entitled under the ADA.

Furthermore, the decision could be relevant by analogy to asymptomatic medical conditions such as cancer, multiplesclerosis, diabetes or tuberculosis that may be controlled by drug therapy or may be in remission. Despite these conditions, employees may still be able to work, as long as the employer allows some accommodations. Thus, there will likely also be an increase of incidences in which persons with those conditions request reasonable accommodations.

Employers should not treat such requests lightly. Failure to make reasonable accommodations for employees with covered disabilities can result in liability both under the ADA and under the analogous provisions of California's Fair Employment and Housing Act ("FEHA"). Determining whether an individual suffers from a disability under the ADA requires a highly individualized analysis. The Equal Employment Opportunity Commission recommends that the employer engage in an interactive process with the employee to identify accommodations. In some circumstances experts on rehabilitation should also be consulted.

When considering an employee's request for accommodation, the employer should keep in mind some examples of accommodation requests that have been considered "reason- able" under some circumstances:

* part-time or modified work schedules and telecommuting
* allowing the employee to fill another vacant position in the company, if allowed by company policy
* purchasing specialized equipment or devices
* making facilities more accessible to disabled employees

Employers then should be aware that requests for accommodation may increase following the publicity surrounding the Supreme Court's decision. Employers should take all requests for reasonable accommodation seriously and, when in doubt, seek the advice of counsel before making a decision that may result in exposure to substantial liability under the ADA or FEHA.

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