Nine months ago, the personnel manager of a small Denver company called the firm's lawyer with some disturbing news: the night before one of their employes had died from Acquired Immune Deficiency Syndrome (AIDS).
As the lawyer, Laurance E. Baccini of Philadelphia, recalls the incident, two hours later he received another call from the official, who reported that he was just visited by the dead victim's lover, also a company employe.
Another two hours transpired, and the company telephoned again. The word had leaked out among the company's work force. "Everybody wants to walk out," Baccini was told. "What do we do?"
Baccini says he did some quick research and concluded that it would be appropriate for the firm to fire the individual to defuse the situation. As he quickly adds, however, "If I were called upon to give that advice today, I would be dead wrong."
An increasing number of lawyers like Baccini are coming to the conclusion that AIDS patients are legally disabled and subject to the protection of federal and state laws prohibiting discrimination on the basis of a handicap. Those laws require companies to treat handicapped workers who can otherwise fulfill the duties of their job the same as those with no disabilities.
Only a handful of job-discrimination cases have been brought by AIDS victims around the country under this theory, but the number is growing as precedents are slowly set in this fast-emerging area of labor and occupational law.
These lawsuits and complaints are only the most public manifestation of the kinds of thorny employment issues facing businesses around the country as a result of the rapid appearance of AIDS in the workplace.
Many corporate managers are wondering what to do for their employes who contract AIDS. At the same time, they are being confronted by instances of job action by workers who fear contracting the disease from a stricken colleague. Companies that bear most of the cost of health care insurance are seeking methods of keeping down the potentially astronomical medical costs of treating AIDS patients. And firms are beginning to consider requiring bloods tests of prospective employes to see if they have been exposed to the AIDS virus.
"If you ignore AIDS because you believe you're never going to face it in your workplace, I think you're making a big mistake," Robert C. Gombar, a Virginia attorney knowledgeable about AIDS, told a recent gathering of area business executives.
With more than 18,000 reported cases of AIDS, signs are available that companies are beginning to take heed. A number of firms, such as BankAmerica and several others mostly on the West Coast, have developed explicit policies for dealing with AIDS and other catastrophic illnesses. Trade associations are sponsoring information sessions for businesses, and social workers and consultants working on AIDS issues report increased interest in their services.
Still, the evidence suggests that in many ways American business remains unprepared for the legal and ethical issues presented by the AIDS crisis. Recent surveys indicate that a large percentage of companies have not thought out how they would handle incidences of AIDS in the workplace, while a tiny minority had adopted formal written guidelines.
Yet the surveys also show that many companies, large and small, are being forced to deal with the disease. A study by management consultants Towers, Perrin, Forster & Crosby, for instance, shows that roughly a fifth of the firms it questioned reported having workers with AIDS, although the reactions of individual companies can often prove quite different.
For example, Bill, a public relations officer for a Washington-based trade association, reports that his boss "was devastated" when Bill informed him in January that he had been diagnosed as having AIDS. But he said he was told that "as long as you can work, you can work here," while the association continued his health insurance and other benefits.
"I'm a dying man, but I'm one of the luckiest men in the world to have all this support," added Bill, who asked that his last name not be given.
Not all workers have been so fortunate. Jim Graham, director of the Whitman-Walker Clinic, a service center for AIDS patients, said the clinic has reports of 30 area workers -- from hair dressers and hotel clerks to computer operators and school teachers -- who have been dismissed from their jobs in recent months after AIDS diagnoses.
"Its still a very uneven situation," said Graham, who himself has provided legal help to many of these dismissed workers. "I know of employers who have clothed, and protected, and been very generous to employes who have AIDS. On the other hand, there are a number of employers who haven't taken that attitude. I've seen both."
Although they say the dismissals continue, Graham and lawyers for businesses agree that a growing body of medical evidence and legal precedents is making it difficult for firms to fire AIDS patients without exposing themselves to sizable liability.
A key event was the Centers for Disease Control's release last November of guidelines on preventing the transmission of AIDS in the workplace. The guidelines stressed what many epidemiologists had been saying for some time -- that AIDS is a sexually transmitted disease, and there is no known risk of passing on the AIDS virus in offices, factories, and most other workplace settings.
Meanwhile, although only a few cases of alleged discrimination have actually reached the courts since the disease was first discovered, lawyers say that several legal developments also have strengthened the hands of AIDS patients.
One is that a number of jurisdictions, including the District, have indicated that they interpret their laws prohibiting discrimination against the handicapped to include AIDS victims. Forty-two states and the District have such antidiscrimination statutes.
In addition, a decision by a federal appeals court last year held that the federal law preventing discrimination against the disabled applies to people with chronic contagious diseases, such as tuberculosis. Labor experts said they believe that AIDS would be interpreted as falling within this category.
"I think that a number of employers and lawyers are surprised that a communicable disease is a handicap, but that is the way the law is evolving," said Martin D. Schneiderman, an attorney who has consulted with several corporate clients about AIDS issues.
Another volatile issue for companies is whether or not to screen employes or prospective employes to see if they have been exposed to HTLV-III, the AIDS virus. Only Enserch Corp. a Texas energy firm, has publicly stated it conducts blood testing of employes -- in this case of food handlers in the company cafeteria -- but surveys indicate that a number of other firms are considering such programs.
"We weren't adequately testing our food service workers for communicable diseases," Howard L. Matson, an Enserch spokesman, said of the company's decision last fall to start screening. "If someone comes up with AIDS antibodies, we're going to remove him from the food-handling area. Suffice it to say, we're going to take care of that person. We're not going to cut him loose."
Matson discounted the CDC guidelines on AIDS in the workplace. "Right now we don't feel there is a large enough body of knowledge that we can take a chance," he said.
Many legal experts, however, question whether screening is a good idea. For one thing, they say, the blood screening test now available cannot identify the presence of the AIDS virus itself, but only whether a person may have been exposed to the virus. Public health officials have estimated that there are anywhere from one million to two million people who have been exposed, many of whom will never contract the disease.
Moreover, because the law appears to prevent firms from firing otherwise able AIDS patients, lawyers say the test is useless and may only serve to open up firms' legal liability. "If you test, and you can't do anything about it, then what's the point of knowing about it?" asked Schneiderman.
Indeed, a large number of firms have eschewed testing of workers, and have sought to accommodate AIDS victims. Even for these firms, however, dealing with AIDS can be fraught with a host of other difficulties.
A major concern is the havoc medical bills from AIDS might play on the premiums charged by the group health insurance plans that most companies offer their employes. The CDC, for instance, has calculated that the average cost of treating an AIDS patient is in the $140,000 range.
Nancy L. Merritt, a vice president of BankAmerica, one of the first companies to adopt an AIDS policy, said that as a result of such calculations, many companies, including her own, have sought the use of hospices and other alternatives to hospitalization as a means of keeping health costs down.
Perhaps the most perplexing problem for many companies facing AIDS in the workplace is how to deal with the fears -- and often hysteria -- of coworkers. Lawyers say that given the medical consensus that AIDS is not transmitted casually in the workplace, workers who refuse to work with an AIDS victim are on shaky legal ground.
But as Baccini, the Philadelphia labor lawyer, suggests, "The practicalities of the situation are difficult to deal with. No matter how hysterical employes are, how does an employer deal with it when they walk out en masse because of the fear?"
Legal standing was of little help to Charles Devane, a prison official in New York, who told a recent conference on AIDS that there have been 30 to 40 instances in which guards have refused to carry out routine tasks because they feared contracting AIDS from inmates. Caitlin Ryan, a District social worker who has dealt with many AIDS patients, said that she has been called in on occasion to deal with workers' fears after an employe was found to have AIDS.