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GAZETTE

DECEMBER 1988

AIDS in the workplace

Against a background medical

prediction of ten million cases of

HIV infection world-wide by the

end of this decade, the Inter-

national Bar Association meeting

last m o n t h in Buenos A i r es

addressed itself in its section

'Medicine and Law' to some of the

legal issues already apparent,

including AIDS related problems in

the workplace.

While most people have come to

realise that there is no risk of

transmission of the AIDS virus in

o r d i na ry soc i al or w o r k p l a ce

s e t t i n g s, a r e c ent s u r v ey in

Philadelphia brought home the

importance of a proper approach by

employers to the problem. The

s u r v ey s h o w ed t he 10% of

company officials would fire an HIV

infected worker, 16% would refuse

to work w i th such an employee,

and 3 8% would try to restrict

by

Ni cho l as J. Kearns

Barrister-at-Law

c on t a ct be t ween the i n f ec t ed

pe r son and o t her emp l oyees,

despite the illegality of such

behaviour in the U.S. Less than

3 0% of companies there have in

place a policy or set of guidelines

for dealing w i t h A IDS in the

workplace, although AIDS has been

identified as the number one socio-

economic concern of employees,

above the federal budget deficit,

drug and alcohol abuse, and job

security.

In terms of the appropriate legal

response, it is instructive to look at

wh a t has happened in the U.S.

Significant steps have been taken

at State and Federal level to outlaw

discriminatory practices against

people w i th HIV. The approach has

been to treat AIDS and any related

c o n d i t i on as a ' d i s ab i l i t y' or

'handicap' w i t h in existing anti-

handicap discrimination legislation.

The Vocational Rehabilitation Act

of 1973 prohibits discrimination by

institutions or contractors who

receive federal funding against a

disabled person simply because he

has a physical handicap, providing

that person is otherwise qualified

and capable of working and does

not pose a direct threat to the

health or safety of others.

In a milestone decision in March,

1987, the U.S. Supreme Court, in a

case wh i ch dealt specifically w i th

tuberculosis as a handicap (but

wh i ch was also considered applic-

able to those w i th AIDS) held that

persons w i th contagious diseases

were protected under the Act.

Congress subsequently codified

this ruling in the Civil Rights

Restoration Act passed in March of

this year.

Parallel w i t h this development, a

significant number of States have

passed or extended their anti-

d i sc r imi na t i on laws to protect

persons w i th HIV infection. A

typical example can be seen in

legislation enacted in Rhode Island

in July wh i ch prohibits discrimina-

tion against HIV positive personnel

or those perceived to be infected in

h o u s i n g, emp l o y me n t, pub l ic

accommodation, granting of credit

and delivery of services. As in other

States, the measure also prohibits

HIV testing as a condition of

employment, except where infec-

tion would " cons t i t u te a clear and

present danger" of transmission to

others. Many statutes also require

reasonable workplace accommo-

dation of handicapped individuals.

Both presidential candidates in the

recent U.S. election were com-

mitted to supporting the Americans

w i th a Disability Bill, also sponsored

by Teddy Kennedy, wh i ch would

extend anti-discrimination measures

right across the private sector and

which, when enacted, will ensure

that every U.S. citizen is adequately

protected under the law.

The EC, in its Communication on

the fight against AIDS in February,

1987, s t r es sed t he need for

Commun i ty action in relation to

equal access to employment. In

this respect, it is perhaps surprising

to discover that there is no anti-

handicap discrimination legislation

in Ireland. In May of this year, the

Department of Finance issued a

policy document on AIDS in the

public service wh i ch provides that

employees who are HIV positive or

who suffer from AIDS will be

retained in their job for as long as

they can perform their duties to an

acceptable standard. The I.C.T.U.

has also issued guidelines to trade

unions to help w i th practical issues

that may arise. This leaves a very

big gap where some form of legis-

lation is required to comply w i th EC

requirements and to bring Ireland

even partially into line w i th the US

position. It is likely t hat the

Employment Equality Act, 1977

could be recast so as to extend its

p r o t e c t i on and p r ocedu r es to

persons w i th HIV infection, subject

to the provision that the person be

fit to carry out the duties of the job

and is not a source of danger to

himself or others. Also, the list of

persons deemed to have been

unfairly dismissed under the Unfair

Dismissals Act could readily be

enlarged to include a dismissal

wholly or mainly resulting from the

employee's status as a person w i th

HIV infection. It cannot be stressed

often enough that a person w i th

HIV i n f e c t i on may be t o t a l ly

asymptomatic and remain so for

many years.

In Buenos Aires the meeting of

the Committee on Medicine and

the Law passed a resolution wh i ch

has now been sent forward for

consideration by the Council of the

I.B.A. and which provided as follows:-

1. That all member States bring

forward effective legal measures

to ensure equal access to employ-

ment for persons w i th HIV.

2 That the I.B.A. recognises AIDS

and HIV infection as a disability

or handicap in respect of wh i ch

legislation can be introduced to

prohibit discrimination against

HIV positive persons in housing,

employment, public accommo-

dation, granting of credit and

delivery of services.

3. HIV testing as a condition of

employment should be prohibited

except where the absence of

AIDS or HIV infection is a bona

fide requirement of the job.

4. Employers should be encouraged

to make reasonable workplace

a c c ommo d a t i on for persons

w i th HIV infection.

5. Employers should be encouraged

to put in place guidelines and

educational programmes for deal-

ing w i th AIDS in the work-

place.

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