CourtCases2010

R rep no 101485 ii at 75 1990 hr rep no 101 485

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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.

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