Citation Numbers: 77 Op. Att'y Gen. 181
Judges: DONALD J. HANAWAY, Attorney General
Filed Date: 8/22/1988
Status: Precedential
Modified Date: 7/6/2016
GEORGE E. RICE, Acting Corporation Counsel Milwaukee County
You have requested my opinion on two questions. You ask whether the police and fire commission of the city of South Milwaukee can require testing for the AIDS virus as part of the normal medical physical examination given to paramedic candidates in the absence of a declaration by the Department of Health and Social Services that paramedics provide a significant risk of transferring the AIDS virus to other individuals. It is my opinion that the commission may not require such testing. You also ask whether section
Section
*Page 182[U]nless the state epidemiologist determines and the secretary of health and social services declares under s. 140.05(1) that individuals who have HIV infections may, through employment, provide a significant risk of transmitting HIV to other individuals, no employer or agent of an employer may directly or indirectly:
(a) Solicit or require as a condition of employment of any employe or prospective employe a test for the presence of an antibody to HIV.
(b) Affect the terms, conditions or privileges of employment or terminate the employment of any employe who obtains a test for the presence of an antibody to HIV.
The initial question is whether a police and fire commission is an "employer" within the meaning of section
Moreover, a police and fire commission has all the attributes of an employer as that term is generally understood, section
Further, inclusion of a police and fire commission under the coverage of section
The statute prohibits employers from requiring HIV tests of current or prospective employes unless the state epidemiologist and the secretary of the Department of Health and Social Services determine that employes with HIV infections present a substantial risk of transmitting the virus to others through their employment. To date, the state epidemiologist has not determined that paramedics present such a risk. The police and fire commission therefore, may not test current or prospective paramedics for HIV.
In my opinion, members of the police and fire commission and the city of South Milwaukee would be immune from money damage *Page 183
suits by individuals who could prove that they became infected with HIV through employment-related contact with a paramedic. "The general rule is that a public officer is not personally liable to one injured as a result of an act performed within the scope of his official authority and in the line of his official duty." Lister v. Board of Regents,
Under section
The foregoing is not to say that the commission and the city are insulated from all liability. If a judgment is obtained against a public employe because of acts committed while carrying out duties, and while acting within the scope of employment, the employing political subdivision is liable for the judgment. Sec.
DJH:BAO *Page 184
vernon-c-adams-v-frank-j-pate-warden-luther-w-miller-v-illinois , 445 F.2d 105 ( 1971 )
Monell v. New York City Dept. of Social Servs. , 98 S. Ct. 2018 ( 1978 )
Lifer Ex Rel. Grutzner v. Raymond , 80 Wis. 2d 503 ( 1977 )
State Ex Rel. Dept. of Pub. Instruction v. ILHR , 68 Wis. 2d 677 ( 1975 )
Lister v. Board of Regents of the University of Wisconsin ... , 72 Wis. 2d 282 ( 1976 )
Pembaur v. City of Cincinnati , 106 S. Ct. 1292 ( 1986 )
Kimpton v. School District of New Libsbon , 138 Wis. 2d 226 ( 1987 )