Sunday, July 30, 2006

Student Note on HIV-Positive Public Safety Workers

New on Westlaw: Manju Gupta, Note, Occupational Risk: The Outrageous Reaction to HIV Positive Public Safety and Health Care Employees in the Workplace, 19 J.L. & Health 39 (2004-2005). From the introduction:

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 and the Americans with Disability Act (ADA). 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.

A very interesting issue, about which I've done some writing myself.


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