October 15, 2019

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Medical Progress Needs to Be Assessed in Determining Whether an Individual Is Qualified.

A recently filed federal court case should serve as a reminder to employers that medical advances often make the impossible possible and, as a result, can make the unqualified qualified under ADA. Although the suit asserts a constitutional violation and not a claim under the ADA, the lesson is worth heeding by the conscientious non-governmental employer.

The ADA sought to strike at the heart of stereotypes that employers may harbor about differently abled workers—whether based on irrational fears or paternalistic instincts. Congress found that these stereotypes prevented folks from advancing in the workplace or from being hired in the first place. These stereotypes concern serious illnesses as well as obvious characteristics such as missing limbs and being wheelchair bound. There are, of course, some illnesses that are disqualifying. But there are also illnesses that were once seen as disqualifying, but are not necessarily so now. Some believe that restrictions against employment of people with certain diseases must be discarded when medical advances have all but neutralized the disqualifying aspects of the illness. This is the argument being advanced by an Army National Guardsman who has sued the U.S. Department of Defense. Nicholas Harrison claims that Army policies that variously exclude or limit the military service of HIV-positive people are unconstitutional and have denied him the right to serve in Judge Advocate General Corps as a military attorney and may deny him the right to serve altogether. Harrison et al. v. Mattis et al., case number 1:18-cv-00641. Harrison is challenging decades-old DOD policies that bar HIV-positive people from joining the military, and limit the service of troops who contract the virus while in service. His lawsuit claims that these policies are flawed and fail to account for medical advancements that make the disease effectively irrelevant to the ability to serve.

According to the Complaint, until the mid-1990s, a HIV was a terminal disease but scientific and medical advances related to antiretroviral medications have “radically changed” the landscape for treating and preventing HIV since then, and as a result changed the ramifications for people living with the disease and it is now a manageable chronic condition instead of a terminal disease.

For private employers the lesson here is, as always, to treat every request for an accommodation on an individual basis and to keep an open mind. Medical and biomedical research maybe helping a potentially valuable employee vanquish a disabling stereotype despite what we might have taken as fact a short time ago.

Jackson Lewis P.C. © 2019


About this Author

Daniel Schwarz, Jackson Lewis Law Firm, Portsmouth, Labor and Employment Law Attorney

Daniel Schwarz is a Principal in the Portsmouth, New Hampshire, office of Jackson Lewis P.C. His practice includes advising private and public sector employers and educational institutions on all aspects of labor and employment law, including wage and hour, wrongful termination, anti-discrimination/retaliation, covenants against competition and breach of confidentiality.

Mr. Schwarz guides employers in creating employee policies and handbooks; provides advice regarding disciplinary procedures up through and including...