Public Health Law Map - Beta 5 - Medical and Public Health Law Site

hepatitis A, the onset of the disease will not be simultaneous, but the disease will
last long enough that at some point many workers will be absent. In years past, it
was common to close the elementary school for an epidemic of a childhood disease.
High-technology service industries that are dependent on skilled personnel are
particularly vulnerable: “Between August 18 and December 25, 1987, 116
employees at the three futures exchanges in Chicago developed clinically diagnosed
mumps. Three cases subsequently occurred in household contacts of affected
exchange employees. Twenty-one persons developed complications; nine were
hospitalized.” [Mumps in the workplace—Chicago. MMWR. 1988;37: 533–538.]
The direct medical costs were over $56,000, with the total work loss probably in
excess of 700 days. The potential tort liability was significant: the mumps virus
induced premature labor in a pregnant employee. Fortunately, the labor was
arrested, preventing a premature birth with the attendant liability for possible injury
to the infant. The report of this epidemic does not discuss whether any of the
infected men were rendered sterile. This corporate epidemic was costly and
completely preventable. Yet like most other employers, the futures exchange did
not recognize communicable diseases as a workplace issue.
3. Communicable Diseases as a Handicap or Disability
The ADA incorporates and expands existing protections provided in section 504 of
the Rehabilitation Act. In cases decided under this predecessor act, the U.S. Supreme
Court held that a person with a communicable disease (tuberculosis) was
handicapped under the definitions of the law. Arline.] This case involved a school
teacher with a history of recurrent activation of her tuberculosis who was fired after
becoming sputum positive. Although acknowledging that Arline was covered under
the provisions of the act, the Court was left with the question of whether she was
otherwise qualified to be a school teacher:
The remaining question is whether Arline is otherwise qualified for the job of
elementary school teacher. To answer this question in most cases, the District
Court will need to conduct an individualized inquiry and make appropriate
findings of fact. Such an inquiry is essential if sec. 504 is to achieve its goal
of protecting handicapped individuals from deprivations based on prejudice,
stereotypes, or unfounded fear, while giving appropriate weight to such
legitimate concerns of grantees as avoiding exposing others to significant
health and safety risks. The basic factors to be considered in conducting this
inquiry are well established. In the context of the employment of a person
handicapped with a contagious disease, we agree with amicus American
Medical Association that this inquiry should include “[findings of] facts,
based on reasonable medical judgments given the state of medical
knowledge, about (a) the nature of the risk (how the disease is transmitted),
(b) the duration of the risk (how long is the carrier infectious), (c) the severity
of the risk (what is the potential harm to third parties) and (d) the
probabilities the disease will be transmitted and will cause varying degrees of
harm.”
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