An employer can dismiss a person suffering from AIDS merely by voicing fear that the disease will spread in the workplace and will not be violating a law prohibiting discrimination against the handicapped, the Justice Department has concluded.
An AIDS-infected worker would have no legal recourse or avenue of redress under the Rehabilitation Act of 1973 unless the employer used fear of contagion as a pretext to discriminatorily fire, transfer or demote the worker, the department's Office of Legal Counsel said in a 49-page opinion.
Section 504 of the rehabilitation act prohibits discrimination on the basis of handicap in any program or activity that receives federal financial assistance.
Fear of Contagion
The opinion made public today said that section "simply does not reach decisions based on fear of contagion--whether reasonable or not--so long as it is not in truth a pretext for discrimination on account of handicap."
The opinion was written by Assistant Atty. Gen. Charles J. Cooper, who heads the Office of Legal Counsel, a division of the Justice Department.
"An employer, for example, who makes hiring decisions based on an unreasonable concern about contagion is no different from an employer whose hiring decisions rest on any other unreasonable basis that lies outside Section 504's limited reach," Cooper's opinion said.
The ruling could be superseded by judicial decisions if the issue is taken to court.
Jeff Levi, executive director of the National Gay and Lesbian Task Force, which has 7,000 members, said: "The decision seems to be based on politics and fear, not on good law or good public health.
"The Public Health Service says that AIDS is not transmittable through casual contact or in the workplace. The Justice Department clearly raises that specter as a possibility."
Among other things, Cooper's opinion concluded that there is much scientific doubt on how AIDS is spread.
If a person is dismissed from a job or excluded from a federal program solely because he suffers from the effects of AIDS, his dismissal would be illegal if he is otherwise qualified for the position, the opinion said.
But it also said that if the person was excluded because of concern by the employer that he would spread the disease, the dismissal generally would represent no violation of Section 504.
Acquired immune deficiency syndrome, the virus that attacks the body's immune system, is spread among male homosexuals during sexual contact and to intravenous drug users and recipients of blood transfusions.
The Public Health Service said recently that by the year 1991, more than 50,000 people a year will be coming down with the disease, for which there is no cure.
The Centers for Disease Control said last November that "the kind of non-sexual person-to-person contact that generally occurs among workers and clients or consumers in the workplace does not pose a risk for transmission."
But in regard to the center's conclusions, the Justice Department legal opinion said only, " . . . it has been suggested . . . that conclusions of this character are too sweeping."
The opinion goes on to cite the views of several researchers who say that it is impossible to rule out the possibility that AIDS is spread by means other than those identified to date.
Cooper's decision said that "the state of medical knowledge concerning . . . (the way AIDS spreads) is still in an early stage of development, and the mechanisms of the disease's transmission are not fully understood."
The ruling stemmed from a request for legal advice from Human Service's Office of Civil Rights, which has received complaints in which workers employed in hospitals or clinics allege that they have been discriminated against by their employers because they have AIDS or test positively for AIDS antibodies.