Americans With Disabilities Act: Dental Practice Established Direct Threat in Firing HIV-Positive Hygienist, Court Finds

Date: July 31, 2002

A Georgia dental practice did not violate federal disability law by discharging a hygienist after finding out that he was HIV-positive, the U.S. Court of Appeals for the Eleventh Circuit held, affirming a lower court’s summary judgment to the employer, Waddell v. Valley Forge Dental Assocs. Inc., (11th Cir., December, 2001).

“[T]he uncontroverted evidence establishes that a dental worker sometimes does stick or cut himself or herself during treatment,” the court said, and on-the-job blood-to-blood contact providing opportunity for transmission “theoretically could happen, even though the risk is small and such an event never before has occurred.” Because the hygienist therefore “poses a significant risk to others in the workplace,” he is not a qualified individual under the Americans with Disabilities Act, the appeals court found.

Spencer Waddell, a licensed dental hygienist, was employed by Valley Forge Dental Associates, where his primary responsibility was performing routine prophylaxis--the cleaning of teeth. In September 1997, Waddell tested positive for the human immunodeficiency virus. The administering physician notified the dental practice of Waddell’s test results and he was placed on paid leave, while managers of the practice determined how to proceed. After reviewing dental journals and consulting the Centers for Disease Control and Prevention, they informed Waddell that he no longer could treat patients, but offered him a clerical job at about half of his salary. Waddell refused the offer, was terminated, and then sued Valley Forge under the ADA and various other laws.

A federal court granted the employer’s motion for summary judgment, finding that Waddell’s job entailed “exposure-prone” procedures as defined by the CDC and that the necessity of performing the procedures made him a direct threat to his patients. Waddell appealed to the Eleventh Circuit Court of Appeals.

Affirming the lower court, the Eleventh Circuit found that because Waddell’s HIV-status made him a direct threat – defined under the ADA as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation” – he was not protected by the ADA. The court cited its 1999 en banc decision in Onishea v. Hooper (171 F.3d 1289 (11th Cir. 1999)) elaborating on the meaning of “significant risk.” In that case, the court said although the “asserted danger of transfer must be rooted in sound medical opinion and not be speculative or fanciful . . . this is not a ‘somebody has to die first’ standard, either: evidence of actual transmission of the fatal disease in the relevant context is not necessary to a finding of significant risk.”

In this case, the appeals court said, the record established the Waddell posed a significant risk of HIV transmission to his patients. It agreed with the lower court’s conclusion that although the likelihood of transmission from a health care worker to a patient was low, there still was “a sound, theoretical possibility that Waddell could transmit HIV to a patient.” Waddell and his expert witness “downplay[ed] the procedures Waddell had to perform as a dental hygienist and argue[d] that these procedures are not exposure-prone.” The Eleventh Circuit, however, agreed with the lower court’s determination that they constituted “a significant risk under Onishea, given that HIV has catastrophic effects and is inevitably fatal if transmitted to a patient.”

Citing the use of sharp instruments, routine patient bleeding, the risk that a hygienist would be struck while using an instrument, and the possibility of an inadvertent bite or other accident during cleaning, the appeals court concluded that Waddell posed a significant risk to others in the workplace. “These ‘particularized facts’ provide the ‘best available objective evidence’ that Waddell, because he is infected with the fatal, contagious disease of HIV, is a direct threat to his workplace and therefore not a qualified individual under the ADA,” the court concluded.