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Monday, February 19, 2018

WLAD: HIV or Hepatitis C Infections

by Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), what are unfair practices with respect to HIV or hepatitis C infections? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

WASHINGTON LAW AGAINST DISCRIMIANTION

According to WLAD, it is an unfair practice, with very few exceptions, for an employer to refuse to hire any person, to discharge or bar any person from employment, or to discriminate against any person in compensation or in other terms and conditions of employment because of age (40+); sex (including pregnancy); marital statussexual orientation (including gender identity); race; color; creed; national originhonorably discharged veteran or military status; HIV/AIDS and hepatitis C status; the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability; and state employee or health care whistleblower status. It is also an unfair practice for an employer to retaliate against an employee because the employee complained about job discrimination or assisted with a job discrimination investigation or lawsuit.

DEFINITION OF “HIV” AND “HEPATITIS C”

HIV” means the human immunodeficiency virus, and includes all HIV and HIV-related viruses which damage the cellular branch of the human immune system and leave the infected person immunodeficient; and “Hepatitis” means the hepatitis C virus of any genotype. Section 49.60.174(3)(a)-(b) RCW (verify the current text of the law by visiting the Washington Courts Website).

EVALUATION OF CLAIM OF DISCRIMINATION

For the purposes of determining whether an unfair practice under Chapter 49.60 RCW has occurred, claims of discrimination based on actual or perceived HIV or hepatitis C infection shall be evaluated in the same manner as other claims of discrimination based on sensory, mental, or physical disability; or the use of a trained dog guide or service animal by a disabled person. Section 49.60.174(1) RCW.

However, subsection 49.60.174(1) RCW (immediately above) shall not apply to transactions with insurance entities, health service contractors, or health maintenance organizations subject to RCW 49.60.030(1)(e) or 49.60.178 to prohibit fair discrimination on the basis of actual HIV or actual hepatitis C infection status when bona fide statistical differences in risk or exposure have been substantiated. Section 49.60.174(2) RCW.

UNFAIR PRACTICES

As of the date of this article, the following are unfair practices with respect to HIV or hepatitis C infection (verify the current text of the law by visiting the Washington Courts Website):
1.  HIRING, PROMOTION, OR CONTINUED EMPLOYMENT
No person may require an individual to take an HIV test, as defined in chapter 70.24 RCW, or hepatitis C test, as a condition of hiring, promotion, or continued employment unless the absence of HIV or hepatitis C infection is a bona fide occupational qualification for the job in question. Section 49.60.172(1) RCW. 
2.  DISCHARGE, FAIL/REFUSE TO HIRE, SEGREGATE, OR CLASSIFY
No person may discharge or fail or refuse to hire any individual, or segregate or classify any individual in any way which would deprive or tend to deprive that individual of employment opportunities or adversely affect his or her status as an employee, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment on the basis of the results of an HIV test or hepatitis C test unless the absence of HIV or hepatitis C infection is a bona fide occupational qualification of the job in question. Section 49.60.172(2) RCW.
3.  BONA FIDE OCCUPATIONAL QUALIFICATION 
The absence of HIV or hepatitis C infection as a bona fide occupational qualification exists when performance of a particular job can be shown to present a significant risk, as defined by the board of health by rule, of transmitting HIV or hepatitis C infection to other persons, and there exists no means of eliminating the risk by restructuring the job. Section 49.60.172(3) RCW.
4.  BENEFITS UNDER AFFIRMATIVE ACTION PROVISIONS OF CHAPTER 49.74 RCW
For the purpose of chapter 49.60 RCW, any person who is actually infected with HIV or hepatitis C, but is not disabled as a result of the infection, shall not be eligible for any benefits under the affirmative action provisions of chapter 49.74 RCW solely on the basis of such infection. Section 49.60.172(4) RCW.
5.  EMPLOYER IMMUNITY FROM CIVIL ACTION
Employers are immune from civil action for damages arising out of transmission of HIV or hepatitis C to employees or to members of the public unless such transmission occurs as a result of the employer’s gross negligence. Section 49.60.172(5) RCW.
RCW 49.60.172(1)-(5).


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

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