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Unformatted text preview: ee, e.g., Arline, 480 U.S. at 284 (1987) ("Congress
acknowledged that society's accumulated myths and fears about disability and [**40]
disease are as handicapping as are the physical limitations that flow from actual
impairment. Few aspects of a handicap give rise to the same level of public fear and
misapprehension as contagiousness.").
Like the Chapman amendment eventually rejected by Congress, the majority opinion fails
to require an employer to obtain relevant objective medical information prior to
reassigning an HIV infected food-handling employee to a non-food-handling position. In
so doing, the majority allows the fear, prejudice, and ignorance that produced that
amendment to fester unabated.
B. Required Medical Examination
In addition to allowing Prevo to act on fear, prejudice, and ignorance by summarily
reassigning Sharp, the majority reinforces this discriminatory conduct by allowing
Prevo's to require Sharp to submit to a medical examination in order to determine
whether he poses a direct threat to others. A "direct threat" is defined as a "significant
risk to the health or safety of others that cannot be eliminated by reasonable
accommodation." 42 U.S.C. § 12111(3); see also 29 C.F.R. § 1630.2(r) (1997). The
majority correctly notes that "even if an employee is a direct threat, [**41] as long as a
reasonable accommodation can be made to eliminate that threat, the employee may
remain employed." Maj. slip op. at 12 (citing id.).
According to the EEOC's regulations:
The determination that an individual poses a 'direct threat' shall be based on
an individualized [*1102] assessment of the individual's present ability to
safely perform the essential functions of the job. This assessment shall be
based on a reasonable medical judgment that relies on the most current
medical knowledge and/or on the best available objective evidence.
29 C.F.R. § 1630.2 (r) (1997). In making this individual assessment, an employer must
consider the following four factors: (1) the duration of the risk; (2) the nature and severity
of the potential harm; (3)...
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This note was uploaded on 09/30/2012 for the course ENC 102 taught by Professor Deria during the Spring '08 term at FIU.
- Spring '08