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The Special Problems of Immunosuppression

Immunosuppressed workers pose a double-edged problem: they are more susceptible to workplace-acquired infections, and they may harbor infectious diseases such as tuberculosis that pose a threat to other workers. The conventional legal wisdom is that immunosuppressed workers did not need special protections in the workplace. This is predicated on Pneumocystis carinii pneumonia as the model secondary infection. Pneumocystis carinii is a ubiquitous organism that is acquired from the environment rather than personal spread. The person's risk of infection is not increased by being at work. More important, there is no way to prove that the organism was acquired at a workplace, so it is impossible for an infected person to claim for either worker's compensation or third-party tort damages.

The problems arise when the immunosuppressed person is infected with an agent that is traceable to the workplace. This could be a common communicable disease such as chicken pox, which injures the person because of the immunosuppression, or an unusual infection that is acquired because of the immunosuppression. Most employees are in workplaces that do not pose an increased risk of infection. The ADA prevents immunosuppressed workers from being excluded from such workplaces because of their general increased risk of infection. The employer must protect such employees from known risks posed by fellow employees or customers, but this protection must interfere as little as possible with the employee's opportunities in the company.

This might entail being removed from the workplace to avoid a customer with a known infectious disease. In general, the employer's duty will be to identify other employees with communicable diseases. If these employees pose a threat to other workers, they must be removed from the workplace while they are infectious. If these employees pose a threat only to the immunosuppressed employee, the infected employee may be moved away from the immunosuppressed employee during the infectious period. (Short-term illnesses and injuries are not covered by the ADA.)

Many workplaces pose an increased risk of infection: hospitals, medical offices, day care centers, and other workplaces that render personal services to populations that regularly include customers with communicable diseases. The Supreme Court's test from Arline was intended for judging the risk that an infected employee poses to others. If the court uses the same analysis to judge the risk to immunosuppressed persons, the employer must demonstrate substantial risk of harm before the employee can be excluded from the workplace. An infectious disease service in a large hospital might properly refuse to hire an immunosuppressed nurse or ward clerk. A plastic surgeon whose practice is limited to elective cosmetic surgery would not be able to refuse to hire an immunosuppressed person.

As the spread of tuberculosis secondary to HIV-induced immunosuppression demonstrates, immunosuppressed persons can bring communicable diseases into the workplace. This is a significant problem for workplaces such as day care centers or hospitals whose customers are at special risk of infection. Such persons should have special counseling about the risks of secondary infections and undergo periodic screening for tuberculosis and other diseases that are demonstrated to pose special problems. This is controversial, however, because it requires screening for HIV-infected employees.

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