Academic journal article Vanderbilt Law Review

HIV as an Occupational Disease: Expanding Traditional Workers' Compensation Coverage

Academic journal article Vanderbilt Law Review

HIV as an Occupational Disease: Expanding Traditional Workers' Compensation Coverage

Article excerpt

I. INTRODUCTION: THE AIDS EPIDEMIC

Since the acquired immunodeficiency syndrome ("AIDS") was first identified in 1981,1 this disease has had far-reaching social and economic consequences across the country. One of the most profound effects of the AIDS epidemic can be seen in the public health care system. While infection control measures have long been in place to reduce transmission of the disease in the health care setting, in the years following the initial discovery of AIDS, health care workers ("HCWs") were particularly concerned about the possibility of contracting the lethal disease from their patients. Furthermore, although the risk of transmission of the human immunodeficiency virus ("HIV")-the retrovirus that causes AIDS2-from a patient to a HCW proved exceptionally low,3 HCWs questioned how those workers who had contracted the disease in a health care setting would be compensated for their injuries. Over time, HIV has come to be recognized as an occupational disease under workers' compensation statutes when contracted in the health care setting.4 However, it remains difficult for infected workers to prove that their contraction of the disease resulted from the performance of their jobs. Moreover, even when these employees do successfully prove causation, workers' compensation coverage has generally proved to be inadequate.5

In addition to the problems encountered when HIV is contracted by those employees within the health care system, the dilemma of providing benefits to workers with occupationally transmitted HIV seems to be reemerging in new employment settings. Questions have now surfaced as to whether the scope of workers' compensation laws should be extended to employees outside the health care field who have contracted HIV in the workplace. A Connecticut court recently held in Doe v. Department of Corrections that a corrections officer who contracted the disease as a result of his work with a prison's emergency response unit was entitled to workers' compensation benefits.6 The court reached this decision even though, statistically, a worker's risk of being infected with HIV as a member of the emergency response unit was found to be minimal.7 The court's holding seems reasonable given that the facts of this case closely resemble the circumstances surrounding many of the occurrences of HIV transmission in health care settings. Nonetheless, the court narrowly tailored its decision to confer occupational disease status only in those cases where specific criteria are met.8

The Department of Corrections decision sheds light not only on the current state of workers' compensation coverage for HIV-infected workers outside the health care field, but also on the need for greater state legislative action to define the scope of occupationally transmitted HIV coverage. In response to lawsuits seeking workers' compensation benefits for occupationally transmitted HIV, some states have enacted statutes that specifically address the conferral of benefits to workers who contract HIV within the scope of their employment.9 However, these statutes are generally limited to employees in certain professions and fail to provide an overarching rule concerning the transmission of HIV in the workplace.10 Thus, it may be important for state legislatures to consider ways to modify their statutes to explicitly expand or contract the rights of workers who have contracted HIV in the workplace.

In modifying their workers' compensation statutes, states should consider providing more extensive coverage to workers with HIV. Currently, due to limitations in state compensation systems, such as statutory time bars within which an employee must discover the illness, many HIV-infected employees are not able to recover workers' compensation coverage.11 Even in cases where benefits are recovered, the amount of compensation is usually insufficient to cover the large expenses associated with occupational diseases. Furthermore, "coverage is especially weak for diseases that result in death. …

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