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Legal Services

by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the November/December 2000 issue of the Journal

Question: My dental assistant has advised me that she will refuse to treat any HIV-positive patients. This puts me in an intolerable position. I realize my responsibility for treating HIV-positive patients, but my dental assistant is essential in my practice. She has been an excellent employee. Nevertheless, I may have no alternative but to terminate her if she refuses to assist in treating HIV-positive patients. The problem I have is whether I would be exposed to any wrongful termination or employment discrimination action by her if I terminate her for this reason. Please advise.

Answer: As your question implies, a dentist may not legally or ethically discriminate against HIV-infected patients. The law is clear that HIV/AIDS is a protected classification under the federal Americans With Disabilities Act and Michigan’s Persons with Disabilities Civil Rights Act. Multiple judicial decisions have held that a dental office is subject to the federal and state legislation, and that refusal to render routine dental treatment to HIV-infected patients in an office setting when such care would have been provided to noninfected patients is a violation of the law.

As the employer of the dental assistant, it is your responsibility to assure that your dental practice and staff comply with the applicable law and ethics. The American Dental Association policy is that adherence to the Centers for Disease Control and Prevention’s recommended procedures results in little risk of transmission of HIV and AIDS, and that a dentist should not refuse to treat a patient whose condition is within the dentist’s scope of competency solely because the patient is HIV-infected or has AIDS.

An employer may legally terminate an at-will employee without cause, subject to certain conditions. There must be no employment contract precluding termination without cause, and the termination must not be based on discrimination against any class of protected persons under the state or federal discrimination laws. Applying this general rule of law, and assuming no employment contract or personnel policy to the contrary, and that the only reason for termination is the employee’s refusal to treat HIV-infected patients, it can be concluded that you would not be liable for wrongful termination or employment discrimination.

The fact that you as a health professional are legally and ethically bound to treat HIV-infected patients if you would otherwise treat such patients who are not infected presents a compelling reason to terminate your employee for cause. Although such a factual defense establishing cause is not essential in a case where the employee is at-will (i.e., the employee cannot establish either a breach of contract or discriminatory practice in violation of state or federal law), it is always best to present a sound reason for termination, be it to the judge or jury.

If your dental practice has adopted an employee manual including progressive disciplinary procedures, including warnings, probation, etc., you should review those procedures to determine whether they may have an impact on the termination of this particular employee. Even if you have no employment manual or policy governing disciplinary procedures, it would be wise to warn your employee in advance that any refusal to treat an HIV- infected patient would result in termination of employment. It would also be wise to follow this warning in writing and make it clear that this would be the only reason for termination. This would be valuable evidence in the event the employee claimed that there was another reason that might fall within a protected classification under the federal and state discrimination laws.

Since wrongful termination and discrimination litigation is fact-intensive, employers are often uncertain as to the cause for termination that may be asserted by the employee. Plaintiff-employees typically raise factual claims which fall within the discrimination laws. Based on the assumptions incorporated in this answer, however, and the applicable law, the dental assistant would not have a viable cause of action.

Anyone can file a lawsuit. But, based on the facts in this case, such a suit would be summarily dismissed as a matter of law.

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