Occupational risk: the outrageous reaction to HIV positive public safety and health care employees in the workplace.

AuthorGupta, Manju
  1. INTRODUCTION II. HISTORY AND COMMUNICABILITY OF THE DISEASE A. History B. Precautions C. Statistics on Occupational Transmission III. STATUTES A. Anti-Discrimination Legislation: Federal Rehabilitation Act of 1973 and Americans with Disabilities Act IV. TWO LEADING CASES A. Asymptomatic HIV as a Disability Under Bragdon v. Abbott B. Arline: The Four Prong Test C. Controversial Phrases V. CASE LAW UNSUPPORTIVE OF HIV INFECTED PUBLIC SAFETY AND HEALTHCARE WORKERS A. Health Care 1. Mauro v. Borgess Medical Center 2. Bradley v. University of Texas M.D. Anderson Cancer Center 3. Doe v. University of Maryland Medical System Corporation 4. Waddell v. Valley Forge Dental Associates, Inc. B. Fire 1. Anonymous Fireman v. City of Willoughby VI. CASE LAW SUPPORTING HIV INFECTED PUBLIC SAFETY AND HEALTHCARE WORKERS A. Healthcare 1. Joe Doe v. Oregon Resorts B. Fire 1. Doe v. District of Columbia C. Police 1. Holiday v. City of Chattanooga 2. Doe v. Chicago VII. CONCLUSION I. INTRODUCTION

    In 2000, Stephen Derrig, an Akron firefighter, went to a number of doctors seeking a diagnosis for his breathlessness and fatigue. (2) Laying in a hospital bed he was told that he had tested positive for HIV, which had progressed to AIDS. (3) Derrig is a heterosexual man who is married. (4) Luckily, neither his wife nor his children has been diagnosed with the virus. (5) He is not an intravenous drug user. (6) He contracted the disease while at his job, as a fire fighter. (7) It is not known by whom he was infected. (8) As a firefighter he has assisted countless people. (9) He does not know in which encounter he contracted the infection. (10) He assumes he became infected on the job because he does not engage in any of the behaviors that are typically associated with HIV transmission. (11)

    He went public with his case in order to shatter the misperceptions surrounding AIDS. (12) He believes that an infected public safety employee should continue to work in his or her position. (13) One of the differences from Derrig's time of infection to today is awareness. The medical profession and governmental agencies have publicly stated the employees in fields where transmission is a possibility should be able to continue in their positions as long as universal precautions are utilized.

    Physicians have offered their support to Derrig. (14) Derrig is back to work staffing the fire truck. (15) He is not serving in his former position as a firefighter. Contrary to popular belief the position transfer is not due to the fire department being fearful of transmission, but that Derrig would be compromising the fragility of his immune system. (16)

    Dr. Trish Perl, M.D., at John Hopkins Hospital and Health System in Baltimore, oversees a committee that devises work plans for employees who have contagious diseases. (17) She claims," [All] too often people want to spirit away the worker out of fear he or she will spread the disease." (18) She argues that with simple precautions it is not necessary for an employee to quit. (19) The precautions will provide enough protection to contain the disease. She points out that neither Derrig's wife nor children have the disease, which verifies that the disease is not easily transmittable. (20)

    Society, including the legal profession, fears the risk of transmission of HIV in an occupational setting. This is particularly true for those in the health care and public safety settings (fire fighters, police, and healthcare practitioners). This note will assert that the law should afford HIV infected public safety and healthcare employees the right to continue in their occupations. According to current medical evidence, when public safety and healthcare employees use universal precautions the risk of transmission to a person(s) assisted is insignificant.

    At the beginning of the epidemic, the medical profession had yet to conduct research, and the risks of HIV/AIDS were largely unknown. Under those circumstances, it is understandable that the courts may have been overly cautious when confronted with cases involving HIV/AIDS. However, twenty years after the epidemic surfaced, the medical evidence should calm irrational fears that have plagued society. The misguided fear arises because the job duties of public safety and healthcare personnel may include direct contact with bodily fluids.

    Currently, the great majority of courts have ruled that HIV infected employees should not continue in these occupations. Viewed in the light of available medical evidence and statistical data, these rulings represent an overreaction caused by fear surrounding the epidemic. These courts have not measured actual risk against the statutory standards required by the Rehabilitation Act of 1973 (21) and the Americans with Disability Act (ADA). (22) In these cases, the courts have held that when there is any conceivable risk, no matter how theoretical, the employee must discontinue his present work. Only a few courts have carefully assessed the medical evidence and followed statutory guidelines, which permit employees to continue in their occupations because the risk that HIV public safety and healthcare employees pose to the public is infinitesimal.

    This note will critically analyze decisions that do not support public safety and health care employees continuing in their professions. The note opens first with an examination of the history of AIDS and recent treatment of the disease. The second and third sections discuss the statutes and two leading case decisions that involve the treatment of AIDS. The fourth section will analyze the cases that do not support employment of HIV persons in the public safety and healthcare fields. The fifth section discusses cases that favorably treat HIV persons allowing them to continue in their positions in the public safety and healthcare fields. Finally, in the sixth section the note will conclude with what one may draw from the present medical evidence and statistics and how the present treatment of HIV is similar to the past treatment of persons thought to present a threat of communism.

  2. HISTORY AND COMMUNICABILITY OF THE DISEASE

    1. History

      AIDS first emerged in the mid-1970s in Central Africa. (23) One of the first known persons to be infected with the Acquired Immune Deficiency Syndrome (AIDS) was a surgeon working in Zaire. (24) In the 1980's similar symptoms appeared in New York City's gay community. (25) It was a disease that seemed to primarily affect one's immune system. (26) The Center for Disease Control (CDC), the leading federal agency for protecting the health and safety of people, was unsure how to handle, prevent, and minimize the impact of the disease. (27)

      In 1981, a French-Canadian flight attendant, known as Gaetan Dugas, was treated in New York City for a skin condition identified as Kaposi's Sarcoma. (28) The condition is an ailment of AIDS. Through Dugas' sexual partners, medical researchers gained knowledge that the disease was transmitted through sexual contact. (29) By the mid-1980's, the disease was prevalent in gay communities across America. (30)

      Two decades ago AIDS was known primarily as a disease that infected gay men. (31) A recent CDC survey showed that more than thirty percent of gay black males ages twenty--three to twenty--nine in six United States cities have HIV. (32) However, today it is a disease that infects people of every age, nationality, and sexuality. (33) Presently, there are approximately 800,000 to 900,000 people living in the United States who are infected with Human Immunodeficiency Virus (HIV). (34) Each year an additional 40,000 people will become infected. (35) Universally, there are approximately forty million people living with HIV around the world. (36)

      The disease is communicated through sexual contact, the exchange of bodily fluids, and from mother to child through pregnancy. (37) Having unprotected sex, sharing used needles, and a mother passing the disease to her child through vaginal fluids or breast-feeding are the most common forms of transmission. (38) A person who is infected with the HIV virus may remain healthy and show no physical effects for four to seven years. (39)

      Once a person is infected with HIV it is inevitable that the infection will progress to AIDS. (40) The virus invades primarily white cells and body tissues. (41) The virus attaches to the cell and fuses into the cell's membrane. (42) The effect is that the body is unable to fight off infection and the body's immune system is compromised. (43)

      Society has reacted to AIDS hysterically, with minimal empathy, logic, or compassion. A case in 1991 illustrates this point. (44) After John Doe was arrested, he disclosed to police officers that he was HIV positive. (45) Later that day, Doe's car rolled down a hill and struck a neighbor's fence. (46) The police told the neighbor that Doe was infected with AIDS. (47) The neighbor was very distraught because Doe's children and the neighbor's children went to school together. (48) The neighbor contacted other parents and the media. (49) Consequently, the next day nineteen children were removed from the school Doe's children attended. (50) These events occurred because of the irrational fear surrounding the disease.

      The disease affects every aspect of a person's life. The stigma attached to HIV/AIDS has horrendous consequences. Society's treatment of the disease causes a person infected with AIDS to have not only emotional, but financial consequences as well, such as the loss of the person's job and health insurance. These are consequences that may lead to poverty. Despite contrary evidence, society is not convinced that HIV cannot be spread through casual contact. (51)

      Early on, the government did not address society's fear of the disease. (52) In the crucial years of the 1980's, the administration, led by Ronald Reagan, did little to calm the apprehension and falsities surrounding the disease. (53) Twenty years after AIDS appeared...

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