Horror stories concerning the abuse suffered by the AIDS victim in the workplace are plentiful. There have been numerous reports about employees who have refused to work with or touch the AIDS worker, or use the same bathroom, telephone, water fountain, or pencil. It was reported that one AIDS victim was not even allowed to use his pregnant co-worker's word processor; she claimed she had once seen him sweat on the keyboard. Paul Cronan became painfully aware that his employer of twelve years, the New England Telephone Company, had breached his privacy by divulging in large group meetings of employees that he had AIDS. Shortly thereafter, Cronan received calls from co-workers who threatened to lynch him if he returned to work. Cronan sued his employer for breach of privacy and discrimination on the basis of his physical disability. The case was settled out of court. Cronan was reassigned to the company's Needham, Massachusetts facility. In an interview, Ellen Boyd, spokeswoman for the company, described the work atmosphere as one where “fear was rampant among our employees.” A forecast by the National Academy of Sciences that the next ten years of the AIDS epidemic will be worse and more complex than the first decade has served to intensify public fear. This situation is exacerbated by widespread public frustration and helplessness; although the scientific community has reported substantial progress in learning about the disease, there is also a sense that the disease continues to outrun the gains in medical knowledge. Morbidity statistics have become the harbinger of an accelerated AIDS epidemic for the 1990s. The Centers for Disease Control (CDC) estimate that 1 million to 1.5 million Americans harbor the AIDS virus and that by this year approximately 365,000 Americans will have been diagnosed as having AIDS, and 263,000 of those with AIDS will have died. How does all this translate to the workplace? It means more and more employers will be faced with the prospect of conflicting interests between AIDS victims and employees who, because of fear, refuse assignments that will bring them into contact with carriers of the virus. There are legal protections for the AIDS victim. But what, if any, protection does the fearful employee have? An employee who has been disciplined and discharged for refusing a work assignment because of fear of contagion from an AIDS victim may look to a collective bargaining agreement, or the Occupational Safety and Health Act of 1970 (OSHA), or section 502 of the Labor Management Relations Act and section 7 of the National Labor Relations Act (NLRA) for protection. Prospects for success under each weigh heavily on evidentiary questions in relation to tests or standards with which the statutes require compliance. This Article focuses on whether the arbitration provision within a collective bargaining agreement offers viable protection to an employee who is disciplined or discharged for refusing a work assignment with an AIDS victim.
Madelyn C. Squire,
Arbitration of Health and Safety Issues in the Workplace: Employees Who Refuse Work Assignments Because of Fear of AIDS Contagion,
Me. L. Rev.
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