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Unformatted text preview: the likelihood that the potential harm will occur; and (4) the
imminence of the potential harm. Id. 229 According to the majority, Prevo's could require Sharp to submit to a medical
examination in order to make an individualized assessment in considering these four
factors. Yet there is simply no need for a medical examination in order to consider these
factors because ample objective medical evidence exists showing [**42] that he does
not pose a direct threat. See, e.g., Den Hartog v. Wasatch Academy, 129 F.3d 1076,
1090 (10th Cir. 1997) (explaining that "29 C.F.R. § 1630.2(r) does not require an
independent medical examination when the available objective evidence is clear. It uses
the conjunctive 'and/or' between medical knowledge and objective evidence.").
Dr. MacArthur, EEOC's infectious disease expert, testified in his deposition that once
infected with HIV, a person remains infected forever. J.A. at 150-51 (MacArthur Dep.).
He further testified that the disease is ultimately fatal. J.A. at 157 (MacArthur Dep.).
Thus, the only issues left to resolve under the four-factor test are the likelihood that the
potential harm will occur and the imminence of the potential harm. The answers to these
questions are context-specific; one would need to consider the environment in which the
infected employee works in order to evaluate these factors.
No one disputes that Sharp works in an environment where there are cuts, scrapes, and
bleeding. Yet, according to Dr. Baumgartner, the expert of Prevo's, "under ordinary
circumstances, a human immunodeficiency virus (HIV) infected individual working in a
food [**43] service area does not pose any threat of transmission of infection and needs
no restriction in employment." J.A. at 194 (Letter from Dr. Baumgartner to Lubben,
attorney for Prevo's, of 5/9/96, at 1). Granted, "it would be inadvisable for bleeding to
occur as a regular part of the job," but "had medical evaluation been pursued, it is quite
likely that the recommendation would have been for no restrictions on the job." Id.
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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