Employer Who Fires AIDS Victim Is Asking for Trouble, Panelist Says

Employers who fire or discriminate against workers afflicted with AIDS probably won’t get away with it, an attorney told a gathering of business and health care representatives Wednesday.

“Employers are caught in a dilemma,” said attorney Robert L. Wenzel during a panel presentation on “AIDS--Issues in the Workplace” at the Orange County Medical Assn. offices in Orange.

The employer is legally obligated to provide a safe environment for employees, while at the same time the company must not discriminate against workers with “protected handicaps”--a legal category that Wenzel said probably will soon include AIDS, or acquired immune deficiency syndrome.

But Dr. Thomas Prendergast, in charge of epidemiology and disease control for the Orange County Health Department, said AIDS is not casually transmitted and a worker with AIDS poses little danger to others. The chief methods of transmitting AIDS are through intimate sexual contact, the exchange of bodily fluids, blood transfusions or use of intravenous needles, he said.

“We’re talking about a degree of intimacy that doesn’t occur in a normal working day,” he said.

Co-sponsored by the Orange County chapter of American Red Cross, the discussion attracted more than 90 people, who later peppered the panelists with questions about employer and employee rights, insurance coverage and how the disease is spread.

Members of the audience represented high-tech manufacturers, an ambulance company, hospitals, doctors, nurses and other health care professionals, insurance companies, a dairy, banks, airlines, utilities, school districts and school employees, restaurants, grocery companies, city personnel departments and a police department, and politicians’ offices.

AIDS attacks the body’s immune system and leaves it unable to resist disease. Most sufferers are homosexual or bisexual men, although women who have had contact with bisexual men also are among the victims. Intravenous drug users, hemophiliacs and babies born to afflicted mothers also can contract the disease.

Prendergast admitted that the public faces a paradox in understanding AIDS and dealing with its sufferers. “It’s an explosive epidemic,” he said, citing federal Centers for Disease Control statistics of more than 20,000 U.S. AIDS cases and 10,000 deaths. But at the same time, he said, people are told “it’s not very communicable, you don’t have to worry about it.”

Within the high-risk groups there is cause for concern, he said. In the Los Angeles area, 93% of the AIDS cases are homosexuals or bisexuals, and in a section of New York and New Jersey where drug users converge, about 70% of the victims contracted it through sharing syringes and needles, he said.

Prendergast said that when this information is presented to hospitals and other workplaces, the listeners find it “intellectually stimulating” and agree that their own risk is small.

“But if next week you come face to face with your first case, you’re going to have to think it all over again,” he said. There is an emotional response to the threat of AIDS that is “a natural fear of disease.” Ultimately, most people overcome that fear and become compassionate to the AIDS sufferer, he said.

There has to be tolerance and patience with people while they overcome that fear, he said. If it makes a nurse feel better to wear gloves when she delivers a food tray to an AIDS victim, that should be allowed for a while, even though it is unnecessary, he said. But wearing “moon suits” to block out infectious agents is unnecessary and degrading to the sufferer, he said.

“While we’re all being human,” people should still not be allowed to behave “in an inhumane way,” he said.

Attorney Wenzel said there is no definitive federal or California case law yet on whether AIDS is a “protected handicap” against which employers cannot discriminate. The California Department of Fair Housing and Employment ruled in one case that AIDS is a protected handicap, but that case is now being appealed, he said.

Asked about the legality of providing full-time sick leave, to get the AIDS sufferer out of the work ‘It’s an explosive epidemic’ and yet people are told ‘it’s not very communicable, you don’t have to worry about it.’

--Dr. Thomas Prendergast

epidemiologist, Orange County Health Department

place with no financial injury, Wenzel said that tactic, too, is discrimination because the worker is being isolated.

The employer should take no action against an AIDS sufferer or virus carrier unless it pertains to job performance, he said. In dealing with sick leaves, AIDS should be treated like any other disease that disables employees, he said.

The consequence for mishandling a case is likely to be a lawsuit alleging wrongful termination, Wenzel said.

That’s a “real threat to employers” because 70% of those cases are settled in favor of the employees, with an average judgment awarded of more than $400,000, he said. Fired workers also can allege defamation of character, emotional distress and possibly even breach of contract and bad faith because an employer promises to provide for employees, he said. A fired employee loses medical benefits, a severe blow to an AIDS patient, he said.

Kenneth Vadovsky, director of industrial relations for Lear Siegler Inc. of Santa Ana, encouraged employers to establish a policy about AIDS and educate their workers about it.

But most employers will be unprepared until a case presents itself, he said. That’s what happened to him when a distraught employee told him he was dying of AIDS and had no one to turn to because his family was in Cuba.

Vadovsky went to his superiors, then approached the employees. The education program, he said, resulted in empathy for the employee. Several women employees took time off to be with the victim during his final days in the hospital, Vadovsky said. The company helped the employee establish a will and took care of overseas burial arrangements.

The very nature of AIDS leaves its sufferers more susceptible to catching other diseases, Prendergast said. That--not the disease of AIDS--might cause some concern for employers in food service, he said. But as long as employers are taking the necessary, legally required protections against transmitting those other diseases through food, no additional precautions are needed. AIDS itself cannot be transmitted at dairies or other food service industries, he said.

Duane J. Crumb, press secretary for Rep. William E. Dannemeyer (R-Fullerton) pointed out that people who exhibit no symptoms may still be carriers of the AIDS virus. After the panel discussion, he said that too much is yet to be discovered about how AIDS is transmitted and that more precautions should be instituted until definitive answers are known. Dannemeyer has pushed for health professionals and food service workers with AIDS to be barred from working where there is a risk of infection.

Wednesday’s panel presentation was the Orange County start of a five-year nationwide program by the Red Cross to educate the public about AIDS, said Harry Huggins, spokesman for the organization’s Orange County chapter. Other information will be disseminated through flyers, slide programs and video programs, he said.