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A Wisconsin grocery store recently made a costly decision to terminate an HIV-infected teenager who had worked as a part-time bagger for only three weeks. Pursuant to an Equal Employment Opportunity Commission (EEOC) consent decree issued February 1, 2002, Quality Foods has been ordered to pay $89,000 in emotional distress damages and $1,000 in lost wages to the teen and has also agreed to provide Americans with Disabilities Act (ADA) training to all of its managers and supervisors.
According to the commission, Quality Foods terminated Korrin Krause after learning she was HIV-positive. Allegedly, the store manager told the teenager's mother that HIV-infection posed a danger to customers and other employees. The company denies any violation of the ADA, describing the situation as an unfortunate series of miscommunications.
In instances such as this, where an employer feels an employee may be a "direct threat" to other employees or customers, the employer should obtain supporting medical evidence of the threat. Request a statement from the medical practitioner who has examined the employee or who is familiar with the employee's physical or mental history. This statement should state that, even with accommodation, the employee poses a high probability of substantial harm to himself or others if he/she performs the job.
The U.S. Supreme Court has ruled that people infected with the human immunodeficiency virus (HIV) are protected under the ADA "from the moment of infection," regardless of whether or not they show outward signs of the illness. Medical and public health authorities have established that HIV infection cannot be transmitted through casual, social contact as exists in the vast majority of jobs and workplaces. As a result, HIV transmission in the workplace will rarely constitute a direct threat and thus can only rarely be the basis for firing or refusing to hire an individual with HIV infection.
To avoid making costly employment decisions, employers should consider implementing ADA training programs at their facilities to ensure that managers and supervisors can identify and avoid disability discrimination. In addition, each employer should carefully review and revise, where necessary, its hiring philosophy to:
- Eliminate barriers to hiring the disabled wherever possible
- Attempt to qualify individuals with limitations
- Have an open dialogue with employees and applicants for employment
- Concentrate on each individual's ability to do the job, not on a disability
For more information about the ADA, other employment law issues and in-house supervisor training, call Krukowski & Costello, S.C. at (414) 423-1330 or e-mail educational services.
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