Last month the Department of Health and Human Services ordered that a hospital hire a health-care worker infected with the AIDS virus or otherwise forfeit substantial Federal funding.  This decision could strongly impact hospital policies concerning the hiring and firing of employees, not only with symptomatic AIDS, but also employees infected with the HIV virus that causes AIDS.

            The case involves a pharmacist who sought employment at the Westchester County Medical Center in Westchester, New York.  The pharmacist was infected with the HIV virus.    The Hospital agreed to hire the pharmacist on the condition that he not prepare intravenous solutions.  They did not otherwise wish to limit his duties or responsibilities at the hospital.  The pharmacist challenged the restriction and claimed that such limitation on his duties would amount to discrimination.  The hospital then became involved in a lengthy dispute with state and federal regulators over this restriction.

            In March of 1990 the Department of Health and Human Services  found that the hospital, it its attempt to enforce this restriction on the pharmacist employee, had violated the Rehabilitation Act of 1973.  This Federal regulation prohibits institutions that receive Federal funds from discriminating against individuals with handicaps.  In 1988 the U.S. Department of Justice held that people with clinical AIDS and "asymptomatic" HIV-infected persons are considered "individuals with handicaps" for purposes of the Rehabilitation Act.  In the Westchester Medical decision the Department determined that any restriction on the pharmacist's duties such as that imposed by the hospital, would constitute discrimination and be in violation of the Rehabilitation Act.    The hospital refused to comply with this order.  The matter was then heard before an Administrative Law Judge who held that by restricting the pharmacist's duties because of his infection, the hospital was discriminating against him and in violation of Federal law.  Such violation would preclude the hospital from receiving Federal funding. 

            The judge in the Westchester decision found that "The risk for transmission of HIV from an infected health-care worker to a patient associated even with exposure-prone invasive procedures is so small as not to be measurable."  He therefore concluded that "where health-care providers follow universal precautions and do not perform invasive procedures there is no risk that they will transmit HIV to patients."   The judge found that this was the situation existing at Westchester Medical Center.  Therefore, on this basis he ordered that Federal assistance be terminated until the hospital demonstrates to the Department of Health and Human Services that it is complying with the Act.  The hospital defended its policy on the grounds that its practice since the 1970's has been to prohibit any pharmacist who has any infectious condition from preparing an intravenous solution.  This restriction is not limited to HIV infected workers.  The court however felt this practice was unlawful and discriminated against certain workers.

            Although the hospital is appealing this ruling, the decision is an important one and may affect other hospitals' policies toward health-care workers who are infected with the AIDS virus.  If the decision is upheld, hospitals that receive federal funding will be affected not only in their hiring policies but also in the internal restrictions they place on employees.  This decision will also add yet another factor to the significant controversy surrounding attempts to impose HIV testing requirements on health care providers.  Therefore, hospital administrators must proceed cautiously in implementing restrictive policies that affect HIV infected employees.


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    Healthcare Law, Litigation & Public Policy   Medical Licensure & Discipline ♦ Employment Board of Registration

    Hospital Employment Policies

    by Attorney Frank E. Reardon

    May 1992