Michigan Court Allows AIDS Testing of Food Service Employees

By Ronald L. Scott

Sanchez v. Lagoudakis, 1998 WL 432090 (Mich.) decided July 31, 1998 by the Michigan Supreme Court, addressed the obligations of food-service employers and employees with respect to the potential spread of underlying communicable diseases that may be associated with AIDS. The court was faced with interpreting and balancing provisions of two potentially conflicting state statutes, i.e., the Handicappers’ Civil Rights Act (HCRA) and the Public Health Code (PHC). Broadly, HCRA prohibits discrimination on the basis of disability, and the PHC requires that restaurants maintain healthy premises.

Plaintiff Dorene Sanchez worked as a server at defendant Kostas Lagoudakis’ restaurant. Defendant suspected that Sanchez had AIDS and ordered her to prove that she was healthy enough to continue working in the restaurant. Plaintiff proved that she did not have AIDS, but argued that defendant’s actions constituted a discharge, even though he told her she could return to work.

Sanchez filed suit, alleging discrimination in violation of HCRA. The lower court granted summary disposition in favor of Lagoudakis on the ground that because Sanchez did not have AIDS, she was not handicapped and the HCRA was inapplicable. Citing "equitable" powers, the lower court conditioned the grant of summary disposition on payment by Mr. Lagoudakis of $491.25 for Sanchez' lost wages and tips, $316.24 in costs, and $500 for attorney fees. Both parties appealed, and the Court of Appeals affirmed.

On an earlier appeal to the Michigan Supreme Court, the grant of summary disposition in favor of Mr. Lagoudakis was reversed. The court said that AIDS can be a handicap, that HCRA prohibits discriminatory treatment based on an erroneous perception of a handicap, and remanded the case for further proceedings.

On remand, the Court of Appeals held that where a food-service employer has a reasonable suspicion that an employee has AIDS, the employer has the right to ask such employee to undergo testing to determine whether an opportunistic infection in a communicable form is present, based on requirements in the Public Health Code for foodservice employees suspected of having a "communicable disease."

On appeal, the Michigan Supreme Court found the approach taken by the court below to be "unworkable." The court said that since AIDS involves the destruction of the immune system, the least intrusive way to reliably detect opportunistic infections and prevent their transmission (and to determine whether an employee’s AIDS is "related or unrelated to job duties" under the HCRA) is to allow employers to require employees to be tested where the employer has a reasonable suspicion of the presence of AIDS.

The court restricted its opinion to the food service industry context. The court agreed with the Court of Appeals that a compromised immune system resulting from HIV infection, "in and of itself, is unrelated to an individual's ability to satisfactorily perform the duties of a waitress in a food service establishment within the meaning of the HCRA." However, the court found that AIDS is related to an employee's ability to perform a food service industry job where it is: (1) accompanied by an opportunistic infection that is a communicable disease transmissible in a manner described under the Public Health Code; and (2) reasonable accommodation to remove the likelihood of such transmission is not possible.

The court reasoned that the existence or reasonable suspicion of a severely compromised immune system, in the context of food handling, will allow the employer to request reasonable testing for communicable diseases transmissible in a manner that ensures compliance with the PHC. The court felt that such testing may be necessary to prevent the spread of such diseases, and to determine the employee's status and the employer’s rights and obligations under the HCRA. The court further said that to hold otherwise would require employers to become experts in disease transmission and control.

But see Bragdon v. Abbott -- Supreme Court Decision Addresses Application of Americans with Disabilities Act to Individuals with HIV. In Bragdon, the U.S. Supreme Court held that an individual who is HIV positive, but asymptomatic is protected as an individual with a disability under the Americans with Disabilities Act of 1990 (ADA). Section 103(d) of the ADA requires the Secretary of Health and Human Services to publish and annually update a list of infectious and communicable diseases which are transmitted through handling the food supply. The ADA further provides that if an individual has an infectious or communicable disease that is transmitted to others through the handling of food, that is included on the list and which cannot be eliminated by reasonable accommodation, an employer may refuse to assign or continue to assign such individual to a job involving food handling. Finally, the ADA provides that the above provisions are not intended to preempt any state law designed to protect the public health from individuals who pose a "significant risk to the health or safety of others, which cannot be eliminated by reasonable accommodation, pursuant to the [HHS] list." 42 USC Section 12113. The list, first published at 56 Fed. Reg. 40,897 (1991), includes the following pathogens often transmitted by food contaminated by infected persons who handle food: Hepatitis A virus, Norwalk and Norwalk-like viruses, Salmonella typhi, Shigella species, Staphylococcus aureus, and Streptococcus pyogenes. HIV is not on the list.