In this opinion, the Fifth Circuit affirms the grant of summary judgment against an HIV-positive surgical assistant, dismissing his case against his employer, who re-assigned him to the purchasing department following the disclosure of his HIV status. The Fifth Circuit assumed without deciding that HIV was an impairment under the Rehabilitation Act (the Supreme Court later held for the first time that HIV is an impairment under the Americans With Disabilities Act (ADA) in the 1998 case Bragdon v. Abbott, 524 U.S. 624 (1998)). However, the court held that the plaintiff was not a qualified individual for the position under the Rehabilitation Act because, the court concluded, he posed a significant risk of transmitting HIV to others during surgery and reasonable accommodations would not eliminate that risk. The court based this holding on the undisputed facts that the surgical assistant’s hands would come within inches of open wounds, he placed his hands in body cavities approximately once each day, and his duties included handing instruments to surgeons while he held the sharp ends. The court held that, while the CDC had stated that the risk of transmission was small, even a “cognizable risk” was enough given the consequences of an HIV infection. The court also rejected the plaintiff’s argument that he should have been reassigned to a job involving patient contact, stating that his employer had no duty to reassign the plaintiff to any particular job.
The decision can be questioned on several grounds. With regard to the finding that the plaintiff posed a significant risk of transmitting HIV, the decision contradicts current medical knowledge, which then and now has failed to document a single case of HIV transmission in the manner theorized by the court. In doing so, the decision ignores the Supreme Court’s reasoning in School Board of Nassau County v. Arline, 480 U.S. 271 (1987) by (1) relying on “prejudice, stereotypes, [and] unfounded fear” and (2) not giving adequate consideration to the probability that the disease would be transmitted and instead relying on “cognizable risk,” instead of “significant risk.” The decision also ignores the fact that the status of health care workers is impossible to know at a given time, and thus the CDC recommends universal precautions that significantly reduce any risk of transmission. With regard to the court’s holding that the employer had no duty to reassign the plaintiff to a particular job, it is important to note that the law has changed since the facts of the case and that reassignment must be considered in light of 29 C.F.R. 1614.203, which provides protections to ensure that an employee who cannot be reasonably accommodated is assigned to a comparable position.