Abstract

This Note attempts to determine whether asymptomatic carriers of the AIDS virus are protected by the Rehabilitation Act, which only applies to "otherwise qualified" handicapped individuals. It will focus on whether, and to what extent, asymptomatic carriers of the AIDS virus are "otherwise qualified" for employment or participation in a federally-funded program under the Rehabilitation Act, and to what extent an employer or program administrator is required to provide a "reasonable accommodation" for those individuals not "otherwise qualified" as a result of their infection with the AIDS virus.

This Note concludes that there are a small number of circumstances in which asymptomatic carriers of the AIDS virus would not be otherwise qualified for employment in professions involving substantial responsibility for the health and safety of others, or participation in a program where their handicap would present a health or safety risk to others. In such situations, testing programs designed to detect the presence of the AIDS virus and subsequent discrimination against those who test positive would not be prohibited by the Rehabilitation Act.

This Note will first examine cases in which courts have held that carriers of the AIDS virus are handicapped individuals entitled to the protection of the Rehabilitation Act. It will also examine those cases in which a court has recognized a health and safety defense to Rehabilitation Act challenges, will determine the appropriate burden of proof applicable to such a defense, and will apply this defense to three health or safety risks that would render an asymptomatic carrier of the AIDS virus not otherwise qualified for employment, or participation in a federally-funded program. Finally, the Rehabilitation Act's reasonable accommodation requirement and its impact on those employment situations discussed in the previous section will be examined.

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