Occupational Risk: The Outrageous Reaction to HIV Positive Public Safety and Health Care Employees in the Workplace

Article excerpt

  I. 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. …