Nixing’s job offer from hospital to HIV-positive worker may be biased

A Georgia hospital may have violated federal disability law by rescinding its offer of a security guard job to a worker after learning he was HIV-positive, a federal judge in Savannah has heard.

The Equal Employment Opportunity Commission has raised several issues warranting a lawsuit in its lawsuit for Corey McKever v St. Joseph’s/Candler Health System Inc., the U.S. District Court for the Southern District of Georgia has heard. .

Among other things, a jury must decide whether McKever could have performed the essential duties of a security guard without posing a direct threat to patient safety, the court heard.

The job requires assisting medical staff when a patient becomes violent and assisting whenever a patient arriving at the hospital shows signs of potential violence, is possibly suicidal or murderous, or requires restrictions on behavior, the court said. An infectious disease doctor consulted by the hospital explained that there could be a risk of HIV transmission if an altercation between a patient and an HIV-positive security guard results in both of them suffering from open wounds and their blood mixed, the court heard.

But McKever is actively medicating his HIV and has been repeatedly tested as having an “undetectable” viral load, the court heard. People with undetectable loads are less likely to transmit HIV, he said.

The EEOC apparently does not dispute that “responding to conflict situations and aggressive patients is an essential function” for security officers, Judge R. Stan Baker said. But a trial is needed to determine the effectiveness of McKever’s drugs, the judge said Thursday.

People living with HIV may also experience temporary increases in their viral load called “spots,” Baker said. There’s no evidence that McKever ever had a stroke, but the credibility of the hospital’s belief that he could be another issue for trial, the judge said.

It’s also unclear whether the hospital actually performed McKever’s individualized assessment required by the Americans with Disabilities Act before withdrawing his job offer, the court said.

She saw an infectious disease doctor, but that was before reviewing McKever’s medical records, he said. And that doctor testified in deposition that any risk posed by McKever was in the “neighborhood of zero” based on his viral loads, the court heard.

A jury must further decide whether a different job the hospital offered McKever after disqualifying him as a security guard amounted to a lateral transfer and thereby avoided subjecting him to adverse employment action. , Baker said.

The court granted summary judgment to the EEOC on whether McKever’s condition amounts to a disability under the ADA and whether he qualified for the position of security guard.

EEOC attorneys in Atlanta represent the commission. Baker & Hostetler LLP represents the hospital.

The case is EEOC vs. St. Joseph’s / Candler Health Sys., Inc.2022 BL 71994, SD Ga., no. 4:20-cv-00112, 3/3/22.

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