Hospital’s Nixing Job Offer to HIV-Positive Worker Could Be Bias

A Georgia hospital may have violated federal disability bias law when it rescinded its offer of a safety officer position to a worker after learning he is HIV positive, a federal judge in Savannah ruled.

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

Among other things, a jury must decide whether McKever could have performed the essential functions of a safety officer without posing a direct threat to patient safety, the court said.

The job requires assisting medical staff when a patient becomes violent and assisting whenever a patient arriving at the hospital exhibits signs of potential violence, is possibly suicidal or homicidal, or requires behavioral restraints, 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 safety officer results in them both sustaining open wounds and their blood mixes, the court said.

But McKever actively treats his HIV with medication and has repeatedly tested as having an “undetectable” viral load, the court said. Individuals with undetectable loads are less likely to transmit HIV, it said.

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

Individuals with HIV can also experience temporary increases in their viral load known as “blips,” Baker said. There’s no evidence McKever has ever had a blip, but credibility of the hospital’s belief that he could is another question for trial, the judge said.

It’s also unclear whether the hospital truly conducted the individualized assessment of McKever required by the Americans with Disabilities Act before pulling his job offer, the court said.

She consulted an infectious disease doctor, but that was before she reviewed McKever’s medical records, it said. And that doctor testified during her deposition that any risk posed by McKever was in the “neighborhood of zero” based on his viral loads, the court said.

A jury must further decide if a different job the hospital offered McKever after disqualifying him as a safety officer was tantamount to a lateral transfer and thus avoided subjecting him to an 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 was qualified for the safety officer position.

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

The case is EEOC v. St. Joseph’s/Candler Health Sys., Inc., 2022 BL 71994, S.D. Ga., No. 4:20-cv-00112, 3/3/22.