Your Rights - HIV Issues

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Discrimination

Employment Discrimination on the Basis of HIV Status

People who are HIV-positive or who have AIDS are protected from employment-related discrimination under the federal Americans with Disabilities Act (ADA) and the Maine Human Rights Act (MHRA). These statutes, which are almost identical, prohibit discrimination in employment on the basis of a person's disability.

Persons Protected

• A person with AIDS or who is HIV-positive, even if the person is asymptomatic and has no outward signs of illness.
• A person who is regarded or perceived as having HIV.
• A person who does not have HIV, but who is discriminated against because of a "relationship" or "association" with a person with HIV --such as friends, lovers, spouses, roommates, business associates, advocates and caregivers of a person with HIV.

Employment Inquiries about Health and Medical History

During the Application Process

Under the ADA and MHRA, an employer cannot ask a job applicant to submit to a medical exam or answer any medical inquiry.  For example, during the application process, an employer may not ask about:

• Any history of workers' compensation claims or social security disability benefits.
• Whether you have ever been hospitalized or under the care or a physician.
• Whether you have ever had any medical problem which would make it difficult for you to do your job.

After an employer has determined that an employee is qualified for the job and has made a conditional offer of employment, an employer may conduct a medical exam or inquiry under the following conditions:

• The employer must require the same medical exam or inquiry of all entering employees.
• The information must be kept strictly confidential. It must be on a separate form, segregated from other personnel records, and be treated as a confidential medical record.
• The information may not be shared with others, with a limited exception for supervisors or managers who need to be informed of necessary job restrictions or accommodations, or safety personnel who may be told if the disability requires emergency treatment.
• The results of the medical exam cannot be used to withdraw the job offer unless the results indicate that the individual is not able to perform the essential functions of the job with reasonable accommodation.

An employer may require a medical exam of a current employee only if the employer proves it is "job-related and consistent with business necessity." The employer must demonstrate that the medical examination is necessary to measure the actual performance of the employee’s job duties.

Claims of Employment Discrimination Based on Disability

There are two types of claims which may be brought against employers under disability discrimination laws.

1. Treating an Applicant or Employee Differently Based on HIV Status.

An employer may not take adverse action against an applicant or employee simply on the basis that the person is HIV-positive or has AIDS.  This means that an employer may not terminate, refuse to hire, rehire or promote, or otherwise discriminate in the terms and conditions of employment, based on the fact that a person is HIV-positive or has AIDS.

The focus here is whether a person with AIDS or HIV was treated differently than other applicants or employees in similar situations.  Examples of unlawful discrimination:

• An employer may not refuse to hire a person with HIV based on fear that HIV will be transmitted to other employees or to customers or clients.
• An employer may not refuse to hire or make an employment decision based on the possibility, or even probability, that a person will become sick and will not be able to do the job in the future.
• An employer may not refuse to hire a person because it will increase health or workers' compensation insurance premiums.

What is reasonable accommodation?  Persons with disabilities, such as HIV or AIDS, may experience health-related problems which make it difficult to meet some job requirements or duties.  For example, a person may be exhausted or fatigued and find it difficult to work a full-time schedule.

In certain circumstances, the employer has an obligation to modify or adjust job requirements or workplace policies in order to enable a person with HIV or AIDS to perform the job duties. This is known as a "reasonable accommodation."  Examples of reasonable accommodations include:

• modifying or changing job tasks and responsibilities;
• establishing a part-time or modified work schedule;
• permitting time off during regular work hours for medical appointments;
• reassigning an employee to a vacant job;
• making modifications to the physical layout of a job site or acquiring devices such as a telephone amplifier to allow, for example, a person with a hearing impairment to do the job.

If an employee requests a reasonable accommodation, an employer may require verification that an employee has a medical condition, such as HIV or AIDS, which is covered as a "disability" under the ADA or MHRA.

Does an employer have to grant a request for a reasonable accommodation?

In determining whether a requested accommodation creates an undue burden or hardship for an employer, courts examine a number of factors, which include:

• the employer's size, and budget and financial resources;
• the cost of implementing the requested accommodation; and
• how the accommodation affects or disrupts the employer's business.

In addition, an employer only has an obligation to grant the reasonable accommodation if, as a result of the accommodation, the employee is then qualified to perform the essential job duties.  An employer does not have to hire or retain an employee who cannot perform the essential functions of the job, even with a reasonable accommodation.

Becoming Your Own Advocate

While it is useful to consult with a lawyer, the following steps can be helpful in beginning to consider and assess a potential employment discrimination problem on your own.

1) Consider the difference between unfairness and illegal discrimination.  The bottom line of employment law is that an employee can be fired for a good reason, bad reason, or no reason at all.  A person can be legally fired for a lot of reasons, including a bad “personality match.”  A person cannot, however, be fired for a discriminatory reason specifically outlawed by a statute.

2) In order to prove a discrimination claim (i.e., that you were fired, demoted, etc. because of discrimination and not because of some legitimate reason), you must be able to show the following:

• the employer knew or figured out that you are HIV-positive or have AIDS.
• you were qualified to perform the essential functions of the job with reasonable accommodation.
• adverse action was taken against you because of your HIV or AIDS status and the pretextual reason given by the employer for the adverse action is false.

4) Consider the reasons why you believe that you are being treated differently because of HIV status, including the following areas:

• Have other employees in similar situations been treated differently or the same?
• Has your employer followed its personnel policies?
• Did the adverse treatment begin shortly after the employer learned of your HIV status?
• Have you been out of work due to illness for any period of time and did the adverse treatment begin upon your return to work?
• What will your employer’s version of events be?  How will you prove that the employer’s version is false?

• How does the company operate and how would the accommodation work in practice?

Put yourself in the supervisor’s shoes.  What objections might be raised to the requested reasonable accommodation?  For example, if you need to leave at a certain time for medical appointments, who would cover your duties?

Discrimination Against Health Care Workers with HIV

Both the courts and public health authorities have struggled to define the rights of health care workers with HIV who perform invasive procedures, such as surgeons and dentists.

In cases where hospitals have sought to restrict or terminate the privileges of HIV-positive health care workers who perform invasive procedures, courts have reacted with tremendous fear and have insisted on an impossible "zero risk" standard. As a result, the small number of courts which have addressed this issue under the ADA have upheld such terminations.

The employment provisions in the ADA provide that an employee is not qualified to perform the job if he or she poses a "direct threat to the health and safety of others."  To determine whether an employee poses a "direct threat," a court analyzes similar factors as in the context of discrimination by a place of public accommodation:

• the nature, duration and severity of the risk;
• the probability of the risk; and
• whether the risk can be eliminated by reasonable accommodation.

We hold that Dr. Doe does pose a significant risk to the health and safety of his patients that cannot be eliminated  by reasonable accommodation.  Although there may presently be no documented case of surgeon-to-patient transmission, such transmission clearly is possible.  And, the risk of percutaneous injury can never be eliminated through reasonable accommodation...Thus, even if Dr. Doe takes extra precautions...some measure of risk will always exist...

Courts justify the differing conclusions in the refusal to treat cases and the employment cases based on the 1991 CDC Recommendations which leave room for health care institutions to restrict the activities of health care workers who perform "exposure-prone invasive procedures;" and the legal principle that health care workers have a special fiduciary duty to patients which makes even a theoretical risk unacceptable.

It is important to note that only a small number of courts have addressed the rights of HIV-positive health care workers.  Because of the unsettled nature of the law in this area, a health care worker who is confronted with potential employment discrimination should consult a lawyer or public health advocate.

Housing Discrimination on the Basis of HIV-Status

It is illegal under both Maine law and the federal National Fair Housing Amendments of 1989 to discriminate in the sale or rental of housing on the basis of HIV status.  A person cannot be evicted from an apartment because of their HIV status.

In addition, a person cannot be discriminated against in housing because of their "association" with a person with HIV.  This means a person cannot be discriminated against because their roommate, lover, friend, relative, or business partner has HIV.
 

Public Accomodation

Public Accomodations Discrimination / Access to Health Care

Under both the ADA and MHRA, it is unlawful to exclude a person with HIV from a public place (what the law refers to as a "place of public accommodation") or to provide unequal or restricted services to a person with HIV in a public place.

These laws prohibit discrimination in virtually every public place or business, including bars, restaurants, hotels, schools, vocational or other educational programs, taxi cabs, buses, airplanes and other modes of transportation, health clubs, hospitals and medical and dental offices.

Discrimination in Medical and Dental Care

Believe it or not, persons with HIV are still faced with discrimination by hospitals, doctors, dentists, and other health care providers.  This discrimination can take the form of an outright refusal to provide medical services or an illegal referral because of a patient’s HIV status.

Both an outright refusal to provide medical treatment and unnecessary referrals on the basis of a person’s disability are unlawful under Maine law and the ADA.

Typical arguments raised by health care providers:

1.  “Treating People with HIV is Dangerous.”

Doctors and dentists may claim that a refusal to treat a patient with HIV is legitimate because they fear they might contract HIV themselves through needlesticks or other exposures to blood.  However, studies of health care workers have concluded that risk of contracting HIV from occupational exposure is minuscule, especially with the use of universal precautions.

For this reason, in 1998, the United States Supreme Court ruled in the case Bragdon v. Abbott that health care providers cannot refuse to treat people with HIV based on concerns or fears about HIV transmission.

In addition to the legal perspective, both the American Medical Association and the American Dental Association have issued policies that it is unethical to refuse treatment to a person with HIV.

2.  Slightly More Subtle:  “I Am Not Qualified to Treat an HIV-Positive Patient.”

A slightly more subtle form of discrimination occurs when doctors or dentists claim that they are not qualified or equipped to treat the patient and refer that patient elsewhere.  In these cases, the merits of a discrimination claim depend upon whether, based on objective medical evidence, the services or treatment needed by the patient require a referral to a specialist or are within the scope of services and competence of the provider.

In United States v. Morvant, the Court rejected a dentist’s claim that patients with HIV require a specialist for routine dental care.  The court agreed with the testimony of experts who said that no special training or expertise, other than that possessed by a general dentist, is required to provide dental treatment to people with HIV.  The Court specifically rejected the dentist’s arguments that he was unqualified because he had not kept up with the literature and training necessary to treat patients with HIV.  While this case arose in the context of dental care, it is applicable to other medical settings as well.

Under Title III of the ADA (codified as Title 42 of the United States Code, Sections 12181-12188), and similar provisions of Maine law, it is illegal for a health care provider to:

a) Deny an HIV-positive patient the “full and equal enjoyment” of medical services or to deny an HIV-positive patient the “opportunity to benefit” from medical services in the same manner as other patients.

b) Establish “eligibility criteria” for the privilege of receiving medical services which tend to screen out patients who have tested positive for HIV.

c) Provide “different or separate” services to patients who are HIV-positive or fail to provide services to patients in the “most integrated setting.”

d) Deny equal medical services to a person who is known to have a “relationship” or “association” to a person with HIV, such as a spouse, partner, child, or friend.

• A health care provider cannot decline to treat a person with HIV based on a perceived risk of HIV transmission or because the physician simply does not feel comfortable treating a person with HIV.

• A health care provider cannot agree to treat a patient only in a treatment setting outside the physician’s regular office, such as a special hospital clinic, simply because the person is HIV-positive.

• A health care provider cannot refer an HIV-positive patient to another clinic or specialist, unless the required treatment is outside the scope of the physician’s usual practice or specialty.  The ADA requires that referrals of HIV-positive patients be made on the same basis as referrals of other patients.  It is, however, permissible to refer a patient to specialized care if the patient has HIV-related medical conditions which are outside the realm of competence or scope of services of the provider.

• A health care provider cannot increase the cost of services to an HIV-positive patient in order to use additional precautions beyond the mandated OSHA and CDC infection control procedures.  Under certain circumstances, it may be an ADA violation to even use unnecessary additional precautions which tend to stigmatize a patient simply on the basis of HIV status.

• A health care provider cannot limit the scheduled times for treating HIV-positive patients, such as insisting that an HIV-positive patient come in at the end of the day.

Testing, Privacy and Confidentiality of HIV-Related Information

Informed Consent

Title 5 Maine Revised Statutes Annotated (MRSA) Section 19203-A provides that no person may perform an HIV test without the subject's voluntary written informed consent.  Maine law, however, permits involuntary HIV testing in certain limited circumstances, such as testing of a person convicted of a sexual assault crime, and of the source of an occupational exposure.  (See Sec. I(B) below). Anonymous testing sites may obtain verbal rather than written consent for HIV testing. 5 MRSA Sec. 19203-A (1).  In addition, the informed consent law was amended in 1995 to provide that informed consent is not required for "repeated HIV testing ... to monitor the course of established infection." 5 MRSA Sec. 19203-A(1).

Under the informed consent requirements of Maine's HIV testing law, the person to be tested must have an "actual understanding" of the nature of an HIV test and the purposes for which the test results may be used, the persons to whom the results may be disclosed, and any foreseeable risks and benefits of the test. 5 MRSA Sec. 19201 (5-A).

Informed consent therefore requires that the subjects of HIV tests (other than at anonymous testing sites) be informed of the provisions of a new Maine law, effective January 1, 1999, on the confidentiality of health care information. This law, discussed in Section II below, specifies the circumstances in which medical record information, including HIV status, may be disclosed by a health care provider or facility without the patient’s authorization.

Counseling Requirements

Under 5 MRSA Sec. 19204-A, persons who are the subject of an HIV test must be offered pre and post-test counseling. In order to decline this counseling, a person must sign a waiver.

Pretest counseling must include:

• the nature and reliability of the test being performed;
• the purpose of the test and to whom the results may be disclosed;
• foreseeable risks and benefits from the test; and
• information on "good HIV preventive practices and HIV risk reduction."

• the reliability and significance of the test results;
• information about preventive practices and risk reduction; and
• referrals for medical care and support services, as needed.

Consent To HIV Testing By Minors

Under 32 MRSA Sec. 3292, a physician may test a minor for HIV without obtaining the consent of the minor's parent or guardian.  Under this statute, a physician is not obligated to, but may, inform the minor’s guardian or parent of any medical treatment rendered, including HIV test results.  32 MRSA Sec. 3292.

Exceptions to the Voluntary Informed Consent Requirement: Occupational Exposures and Sexual Assaults

HIV Testing in the Context of Occupational Exposure

Under Maine law, a person who, while performing his or her job duties, experiences an exposure to potentially infectious blood or body fluids of another person may petition the district court for an order that the source of the exposure submit to involuntary HIV testing and that the results be provided to the employee.  5 MRSA Sec. 19203-C.

In order for the district court to make such an order, the exposure must create a "significant risk of HIV infection," as defined by the Bureau of Health. Prior to the court order, the employer must first attempt to obtain voluntary consent to an HIV test from the source of the exposure.  Also, the employee exposed to the blood or body fluids must have consented to and obtained an HIV test immediately following the documented exposure.

The statute sets forth the procedure for obtaining a court order.  The employee must file a petition in the district court. The district court must schedule a confidential hearing and, if requested, appoint counsel for any indigent client. The court, however, may order a public hearing or release a report of the hearing to the public upon request from the source of the exposure.

The court may order subsequent HIV testing arising from the same exposure.  If the court orders an involuntary HIV test, the source may appeal the order to the Superior Court. The employer of the person exposed is responsible for the employee's costs, including the payment of attorneys' fees.

HIV Test After Conviction for Sexual Assault

Under 5 MRSA Sec. 19203-F, a victim of a sex crime (or the parent of guardian, in the case of a minor or an incapacitated  adult) may petition the court for an involuntary HIV test of a person who has been convicted of the sex crime. The petition must be filed within 180 days of the conviction.The results of the involuntary HIV test are disclosed to the victim-witness advocate, who shall disclose them to the petitioner.  The petitioner must previously have had HIV test counseling (see section I(A)(2.) above). The court must order that the test results be disclosed to the convicted offender if requested by the victim.

Other Instances Where Consent Is Not Required

Informed consent for an HIV test is not required when testing a donated human body part to assure the medical acceptability of an organ donation. 5 MRSA Sec. 19203.In addition, certain laboratories, researchers, blood banks and health care providers may test blood or tissues for HIV without informed consent for the purpose of research as long as the identity of the test subject is not known.

Impermissible Requirements for HIV Testing by Physicians and Employers

Physicians

A health care provider may not deny treatment or care based on the refusal to consent to HIV testing. 5 MRSA Sec. 19203-A.  See also Discrimination in Medical and Dental Care

Employers

An employee or applicant for employment may not be required to submit to an HIV test as a condition of employment or to maintain employment. 5 MRSA Sec. 19204-B.

There is an exception, however, permitting an employer to require an HIV test when based on a "bona fide occupational qualification." There are few, if any, employment settings in which an employer could prevail in its view that an HIV test is based on a “bona fide occupational qualification.”

Nevertheless, one recent legal development merits special attention here. Some courts have ruled that HIV-positive health care workers who perform invasive procedures can be terminated from employment because of the risk of HIV transmission posed to patients. The AIDS Law Project believes that these cases have been wrongly decided. (See Part 2, Sec. II B, below). In light of these cases, however, it is critical that a health care worker obtain legal advice or assistance if an employer requires an HIV test as a condition of employment.  See also Discrimination Against Health Care Workers.  Contact GLAD's Legal InfoLine for referrals to attorney in the State of Maine or to consult with GLAD's AIDS Law Project.

Confidentiality of HIV Test Results and Medical Records

A new Maine law which seeks to create a comprehensive framework for the privacy of medical records information went into effect on January 1, 1999. (See 22 MRSA Sec. 1711-C, "Confidentiality of Health Care Information”).  This law is something of a misnomer since it also creates significant exceptions to the confidentiality of health information. It is important for people to understand that this law narrows privacy protections for people with HIV in Maine.

Disclosure of HIV Test Results

5 MRSA Sec. 19203 prohibits the disclosure of HIV test results without written authorization to anyone other than the subject of the test except under the following specifically enumerated circumstances:

• To another health care provider or facility for diagnosis, treatment or care in "emergency circumstances." 22 MRSA Sec. 1711-C(6)(A)(1).
• To another health care provider within the same office, practice, or organization. 22 MRSA Sec. 1711-C(6)(A)(2)(a).
• To another health care provider outside the office, practice or organization in a nonemergency, as long as the patient has given oral consent for such disclosure.  [Authorization to disclose health care information other than HIV status or mental health services to other providers in a nonemergency may also be inferred from the patient's conduct.].  22 MRSA Sec. 1711-C(6)(A)(2)(b).
• To an agent, employee, or independent contractor of a provider or facility for quality assurance, utilization review or peer review, billing and collection, and risk management. 22 MRSA Sec. 1711-C(6)(B).
• To a family or household member "when an individual is receiving diagnosis or care in an emergency care facility or health care facility."  This disclosure is limited to "the presence and general health condition of the individual."  22 MRSA Sec. 1711-C(6)(C). The terms “family” or “household member” are not defined.
• When a health care provider or facility providing diagnosis, treatment or care determines "based on reasonable professional judgment, that the individual poses a direct threat of imminent harm to the health or safety of any individual." 22 MRSA Sec. 1711-C(6)(D).
• To a federal, state or local government entity as part of an investigation when authorized by a specific statute, subpoena or court order. 22 MRSA Sec. 1711-C(6)(F).
• When necessary to conduct scientific research approved by an institutional review board or a clinical trial regulated by the FDA. 22 MRSA Sec. 1711-C(6)(G).
• To employees of the Department of Corrections, Department of Human Services and Department of Mental Health, Mental Retardation and Substance Abuse Services, to the extent that they are responsible for the treatment or care of the subjects of an HIV test. 5 MRSA Sec, 19203(7).

Reporting of HIV and AIDS in Maine

Under certain circumstances, Maine law permits the disclosure of HIV status to the Bureau of Health (see 5 MRSA Sec. 19203(8)).  Current regulations provide that a diagnosis of: 1) AIDS or, 2) a diagnosis of HIV in combination with a positive TB skin test, must be reported by name to the Bureau of Health. A diagnosis of HIV infection alone must be reported to the Bureau of Health. In that case, the name of the HIV-positive individual may, but need not, be reported. See Rules of Notifiable Conditions, State of Maine, Department of Human Services, Bureau of Health, 1996.

Mandatory Confidentiality Policies

Health Care providers and facilities must develop and implement policies and procedures to protect the confidentiality and security of confidential health care information. 22 MRSA Sec. 1711-C(7).

Constitutional Right to Privacy

Many courts have found that a person has a constitutional privacy right to the nondisclosure of HIV status.  Courts have based this right on the Due Process Clause of the U.S. Constitution which creates a privacy interest in avoiding the disclosure of personal information.

The constitutional right to privacy can only be asserted when the person or entity disclosing the information is a state or government actor -- e.g., police, prison officials, doctors at a state hospital.

To determine whether there has been a violation of the constitutional right to privacy, courts will balance the nature of the disclosure or intrusion into a person's privacy against the weight to be given to the government's legitimate reason for a policy or practice which results in the disclosure.

Availability of Clean Needles

Under Maine law, a person who is 18 years of age or older may purchase a “hypodermic apparatus,” such as a hypodermic syringe and needle, from a pharmacist and other authorized sellers.  32 MRSA Sec. 1387-A.  An individual, however, may not purchase or possess more than ten “hypodermic apparatuses” at any one time, unless otherwise authorized by law (such as a physician acting within the scope of employment).  17 MRSA Sec. 1111.