November 1998

Health Care E-lert - Courts Continue to Hold Certain HIV-Positive Health Care Workers Not Protected By Federal Disability Discrimination Laws, 11/2/98

3 min

Individuals with AIDS or infected with HIV qualify as disabled under the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act. However, courts have generally held that HIV-positive health care workers who perform invasive and exposure prone procedures are not protected by the federal discrimination laws because they pose a direct threat to the health and safety of others.

The latest case on this issue, Mauro v. Borgess Medical Center, was decided by the Sixth Circuit Court of Appeals earlier this year and involved an HIV-infected surgical technician (Mauro) employed by Borgess Medical Center in Michigan. The hospital had been informed by an anonymous tip that Mauro had "full blown" AIDS. Concerned that Mauro might expose a patient to HIV, the hospital created a new full-time position of case cart/instrument coordinator, a position that eliminated risk of transmission of the virus and also offered the same salary and benefits as the surgical technician position. After Mauro refused to accept the case cart/instrument coordinator position, the hospital fired him.

Mauro filed suit alleging that the hospital violated the ADA and the Rehabilitation Act. To prevail under either claim, Mauro would have to show that he was "otherwise qualified" for the job at issue. However, under both the ADA and the Rehabilitation Act, a disabled individual is not "qualified" if he poses a "direct threat" or "substantial risk" to the health or safety of others.

The lower court dismissed the case and the Court of Appeals agreed, holding that as a matter of law, Mauro's presence in the operating room posed a direct and significant threat to the health and safety of others. In reaching this conclusion, the court relied on the description of a surgical technician's duties, which require the surgical technician to place his hands upon and into the surgical incision to provide room and visibility for the surgeon, and the risk of sustaining a needle stick or minor laceration. The court reasoned that Mauro's wound bleeding while in the patient's body cavity could have catastrophic results and near certainty of death.

Other jurisdictions have reached similar conclusions. The Fourth Circuit Court of Appeals held that the University of Maryland's suspension of an HIV-infected neurosurgical resident did not violate federal laws because he posed a significant risk to the health and safety of patients that could not be eliminated by reasonable accommodation. In another case, the Fifth Circuit Court of Appeals found that an HIV-infected surgical technician was not "otherwise qualified" and that the hospital could not make a reasonable accommodation to continue employment because of the risk posed by the technician coming within inches of open wounds and placing his hands in a body cavity roughly once a day.

Please contact Connie Baker (410-244-7535, for more information or copies of these cases. Venable has offices in Maryland, Washington, D.C. and Virginia.