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VIEWPOINTS : Laws Protect AIDS Victims; Co-Workers' Rights Unclear : Employers Balancing Both Sides as Disease's Effects Are Felt at Work

September 13, 1987|WILLIAM S. WALDO | William S. Waldo is a partner in the Los Angeles office of the Paul, Hastings, Janofsky & Walker law firm. He specializes in employment and labor law, representing management

For the nation's working population, the AIDS crisis is not an abstract social or medical problem. We confront the problems of AIDS in the workplace every day.

AIDS patients are increasingly demanding the right to keep their jobs and remain at work. Meanwhile, their co-workers, concerned for their own health and their families' well-being, are coming forward in growing numbers with demands that AIDS patients be isolated or removed from the workplace. And employers, concerned about morale and productivity, are trying to balance the rights of AIDS patients and other workers, using legal standards that the courts have only begun to define.

Just last week, a federal judge in Los Angeles refused to halt the transfer of an Orange County teacher afflicted with AIDS to a desk job outside the classroom. But the impact of that decision should not be misread: The workplace rights of most AIDS patients appear to be securely protected in California, perhaps more than in any other state.

Last week's ruling was narrow, focusing on the plight of an individual teacher who, in my judgment, stands a good chance of eventually winning his case. Indeed, the California Legislature and state agencies have provided extensive protection for AIDS patients, far surpassing the guarantees under federal law.

To begin with, a 1985 state law has the practical effect of barring employers from testing job applicants or employees for AIDS.

In addition, the California Fair Employment and Housing Commission in a recent decision held that AIDS is a "physical handicap" protected under state law. In that case, the commission ruled that Raytheon Co. had unlawfully discriminated against an AIDS patient who wanted to, and could, continue to work when it placed him on an involuntary leave of absence.

The commission found discrimination even though the employer provided disability benefits. Thus, according to the commission, California employers may not refuse to hire, discipline or fire workers simply because they have AIDS.

On top of the protection provided by state law, local ordinances have been adopted in cities such as Los Angeles to try to thwart employment discrimination. The Los Angeles ordinance bars employers from taking any action to "limit, segregate or classify" AIDS patients in any way affecting employment opportunities.

All of the federal, state and local laws notwithstanding, there is some question about what the courts will do. Take, for example, last week's federal court ruling in Los Angeles.

In that case, Vincent Chalk, an Orange County teacher with AIDS, challenged under a narrow federal law the county education department's decision to remove him from the classroom. The department told Chalk that he posed a potential threat to students and other faculty. Siding with that position, U.S. District Judge William P. Gray said, "If I put the fellow back in the classroom and I am wrong, it could well be catastrophic."

But that decision was a departure from prior federal court rulings, including a U.S. Supreme Court case that protected people with contagious diseases such as tuberculosis--and possibly AIDS--against discrimination. Thus, Chalk stands a good chance of ultimately winning his court battle to be reinstated as a classroom teacher.

Many people who work beside AIDS patients are sure to watch the legal developments closely. Managers sometimes are alerted by one or more of their employees of the suspicion that another worker has AIDS. Often, co-workers demand that the employer test the suspected AIDS patient, disclose the results to others who work nearby and, if the test is positive, remove the AIDS patient from the workplace.

California employers, however, should do nothing of the sort. First, there are the bans on requiring AIDS tests and on denying work to AIDS patients, as long as they still can perform the job without endangering anyone's health. Since current medical knowledge indicates that AIDS cannot be communicated through normal workplace interaction, an employer cannot terminate an AIDS patient simply because of the preferences of his fellow employees. Even isolating an AIDS patient in a special office or other work area away from other employees probably amounts to prohibited "physical handicap" discrimination under state, if not federal, law.

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