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HIV-Positive HCWs Protected by Americans with Disabilities Act

In a fact sheet, issued February 26, 2007, the U.S. Equal Employment Opportunity Commission (EEOC) illustrates how the Americans with Disabilities Act (ADA) applies to the healthcare industry. The ADA is the federal law that prohibits discrimination against individuals with disabilities.

Healthcare facilities should review their personnel policies to verify they reflect the recently published view that HIV-positive healthcare workers are covered by the Act. This means a healthcare employer is prohibited from not hiring, or from firing, an individual because of his or her HIV-positive status. HIV infection is considered a disability under the ADA because it limits the "major life activity" of reproduction.

The EEOC includes the below examples. To ensure compliance, also contact your state Board of Health to inquire about state policies regarding healthcare worker restrictions.

Case Example: No Direct Threat

"Ariel, a phlebotomist at a blood bank, is responsible for drawing blood. Lakshmi, a certified nurse's aide in a nursing home, is responsible for dressing and grooming residents, making their beds, and serving their food trays. Both are HIV-positive."

The EEOC concludes that "since the best available medical evidence… indicates that HIV-positive healthcare workers in these types of positions do not pose a direct threat to the safety of patients if they adhere to universal precautions. Therefore, their HIV-positive status would not justify reassigning these employees to different positions or terminating them."

Under the ADA, an employer may exclude an individual with a disability from a particular position if that individual would pose a "direct threat" to health or safety. This is defined as a significant risk of substantial harm to the individual or others in the workplace that cannot be reduced or eliminated. Whether a "direct threat" is present must be considered case-by-case based upon the present ability of the job applicant or employee to safely perform the job.

Case Example: Direct Threat

To illustrate when a "direct threat" assessment would be applicable, the EEOC provided a scenario. In it, the physician assigned as chief of the internal medicine department abused both drugs and alcohol. The doctor was out for three months for alcoholism treatment after a hospital employee found him treating a patient while visibly intoxicated. After treatment the physician wanted his former position back. The hospital refused, based on information that he had relapsed after a six-year period of sobriety, and his prior alcohol abuse and barbiturate addiction had gone undetected for many years.

"Under these circumstances, the physician would pose a direct threat even with reasonable monitoring," the EEOC concluded. Also, the employer could discipline the physician (up to and including termination) in accordance with hospital policy, because personnel are prohibited from drinking alcohol before or during a shift.

The EEOC fact sheet is posted on the Commission's Web site, www.eeoc.gov/facts/health_care_workers.html

Posted by Quality America on April 3, 2007 | Comments (0)

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