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Employee Screening for HIV

The most politically sensitive issue arising from HIV in the workplace is the appropriateness of screening employees for HIV. Employers clearly have the legal authority and duty to screen for medical conditions that potentially endanger the employee, fellow workers, or the public. Employees are routinely screened for medical conditions that pose a potential workplace hazard. The CDC is now recommending that HIV-infected medical care providers refrain from performing invasive procedures. Some commentators believe this restriction should be voluntary, but such a position is legally unsupportable. No medical care institution with oversite authority for health care providers can afford not to require that they be screened for HIV. Such a failure will put the institution at substantial risk of punitive damages if a patient is infected.

Unless the preliminary estimates of the risk of transmission from medical care workers to patients are grossly understated, this concern with the transmission in the medical care workplace is misplaced. The greatest risks of HIV in all workplaces are the dementia and the secondary infections. One federal court has already upheld the legality of HIV screening based on the risk of transmission during invasive medical procedures.[156] While this was decided under section 504 of the Rehabilitation Act, it is expected that the screening of medical care workers will be allowed under the ADA. Outside medical care workplaces, screening for HIV is appropriate only if it is based on the risks of dementia or secondary infections and does not violate state law against HIV testing. Physicians advising employers must carefully monitor the literature on dementia and secondary infections. If these risks continue to increase, then employers will have a duty to screen for HIV and to develop proper accommodations for HIV-infected workers.

[156]Lecklet v. Board of Comm'rs of Hosp. Dist. No. 1. 941 F2d 1495 (1990).

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