Your Rights - HIV Issues

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Discrimination

Anti-Discrimination Laws Applicable to HIV Status

Does Rhode Island have HIV-specific laws that protect people from discrimination?

Yes. Rhode Island law provides specific protection to people with HIV.  The statute (RI ST 23-6-22) provides:

1. “No person, agency, organization, or corporate body may discriminate against a person on the basis of a positive AIDS test result, or perception of same, in housing, employment, the granting of credit, public accommodation [including medical offices and hospitals], or delivery of services...”

2. An HIV test shall not be required as a condition of employment, except where “nondiscrimination can be shown, on the testimony of competent medical authorities, to constitute a clear and present danger of AIDS virus transmission to others.”
 

Employment Issues

People who are HIV-positive or who have AIDS are protected from employment discrimination under both Rhode Island law (RI ST 23-6-22, 28-5-7) and the federal Americans with Disabilities Act (ADA).  Both of these statutes prohibit discrimination in employment on the basis of a person’s disability.

Do these laws apply to all employers?

The Rhode Island law covers employers with 4 or more employees; the ADA covers employers with fifteen or more employees.

Who is protected?

Persons with AIDS or who are HIV-positive, even if they are asymptomatic and have no outward or manifest signs of illness.

 

Persons who are regarded or perceived as having HIV.

 

Under the ADA, but not Rhode Island law, a person who does not have HIV, but who “associates” with a person with HIV - such as friends, lovers, spouses, roommates, business associates, advocates, and caregivers of persons with HIV.

Can a potential employer ask about my health?

Under both the ADA and Rhode Island law, RI ST 28-5-7(4)(i), prior to employment an employer cannot ask questions which are aimed at determining whether an employee has a disability.  Examples of prohibited pre-employment questions are:

• Have you ever been hospitalized or under the care of a physician?

• Do you have any health problems which would make it difficult for you to do this job?

• What medications do you take?

What claims can be brought against employers under disability laws?

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.

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."

What is 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, 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 in The Workplace

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?

Legal Rights of 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.

Are health care workers covered by the Americans with Disabilities Act?

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 Against HIV-positive People

Can people refuse to rent or sell housing to me because of my HIV status?

It is illegal under both Rhode Island law (RI ST 34-37-4) and the 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 his or her HIV or AIDS status, or because he or she is regarded as having HIV or AIDS.

The federal Fair Housing Act exempts, in some circumstances, ownership-occupied buildings with no more than four units, single-family housing sold or rented without the use of a broker, and housing operated by organizations and private clubs that limit occupancy to members.  Rhode Island law exempts only religious organizations and private clubs.
 
 

Public Accommodations

Public Accomodations Discrimination

Can I be excluded from a public place because of my HIV status?

Under both Rhode Island law, RI ST 11-24-2, and the ADA, it is unlawful to exclude a person with HIV from a public place (what the law refers to as a “public accommodation”) or to provide unequal or restricted services to a person with HIV in a public place.  Under both statutes, the term “public accommodation” includes any establishment or business that offers services to the public.

Therefore, people with HIV are protected from discrimination in virtually every public place or business, including bars, restaurants, hotels, stores, schools, vocational or other educational programs, taxi cabs, buses, airplanes, and other modes of transportation, health clubs, hospitals, and medical and dental offices - as long as these facilities are generally open to the public and are not private membership clubs.
 

Discrimination in Medical and Dental Care

Can health care workers refuse to treat me because of my HIV status?

No. Though persons with HIV continue to face discrimination by hospitals, doctors, dentists, and other health care providers, these practices are illegal.  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 Rhode Island law and the ADA.

What if my doctor says:

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. “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.

What exactly does the law forbid?

Under Title III of the ADA (codified as Title 42 of the United States Code, Sections 12181-12188), and similar provisions of Rhode Island 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.

Privacy / Confidentiality of HIV-related Information

Testing Issues

Can someone test me for HIV without my consent?

Rhode Island General Law Title 23, Chapter 6, Section 12 prohibits the administration of any HIV test without the specific, written informed consent of the patient.  The written informed consent form must, at a minimum, include the following information:

• the name and signature of the party consenting to the test;
• the name and nature of the test;
• the reasons for conducting the test;
• the fact that the test results shall remain confidential, except as required by law [see exceptions listed below in §IIA(2)]; and
• “an explanation of how the test results will affect the tested person’s ability to obtain services from the party requesting the test, or those for whom he or she is acting.”

What if I'm under 18?

In Rhode Island, persons under 18 may give legal consent for testing, examination, and/or treatment for any reportable communicable disease, which under Rhode Island Department of Health guidelines includes HIV and AIDS.  RI ST 23-8-1.1.

Are there any exceptions to the requirement of voluntary informed consent in testing for HIV?

Yes. Rhode Island law permits, but does not require, a physician or other health care provider to perform an involuntary HIV test without the consent of the subject under certain circumstances, enumerated below.  However, Rhode Island law requires that “no involuntary testing for the AIDS virus shall take place under [these] exceptions until reasonable efforts have been made to secure voluntary informed consent.”  RI ST 23-6-14, 23-6-15.

1. Youth
Rhode Island law permits the involuntary HIV testing of:

any person under one year of age;

any person between one and thirteen years of age who “appears to be symptomatic for AIDS”;

any person under the age of eighteen who is “under the care and authority of the Rhode Island department of children, youth, and families, and the director of that department certifies that an AIDS test is necessary to secure health or human services for that person.”

RI ST 23-6-14(1-3)

2. Occupational Exposure
Rhode Island law permits involuntary HIV testing when “a person (complainant) can document significant exposure to the blood or other bodily fluids of another person” in the course of performing occupational duties.  In order to compel an involuntary HIV test, the employee must:

a) Complete an incident report within 48 hours;

b) Have a negative baseline HIV test within 72 hours of exposure;

c) Demonstrate that “[t]here has been a significant percutaneous or mucus [sic] membrane exposure, i.e., needlestick; bite; splash over open wound, broken skin, or mucus [sic] membrane; by blood or bodily fluids of the person to be tested; of a type and in sufficient concentration to permit transmission of the AIDS virus, if present in those fluids.”

RI ST 23-6-14(4).  While there is no explicit provision in the statute regarding the procedure for securing a blood sample, it is presumed that a complainant must petition the Superior Court for a court order mandating that a test be performed, as provided for in a similar law regarding occupational exposure in a health care facility (see 3 below).

3. Occupational Exposure in a Health Care Facility
Rhode Island law permits involuntary testing in the event of an exposure to a health care provider in a licensed health care facility or private physician’s office, if:

a) an “exposure evaluation group” of three “impartial health care providers”  determines that a “significant exposure” (see 2, above, for definition) has occurred; and

b) the patient or the patient’s guardian has refused to give informed consent for an HIV test.

If these conditions are met, and a sample of the patient’s blood is available, then that sample can be tested for HIV.  If a sample of the patient’s blood is not available, “then the health care worker may petition the superior court for a court order mandating that the test be performed.”

As with any occupational exposure, “the health care provider must submit to a baseline AIDS test within 72 hours of the exposure.”  RI ST 23-6-14(5).

4. Emergency
An involuntary HIV test is permitted “in any emergency, where due to a grave medical or psychiatric condition, it is impossible to obtain consent from either the patient, or the patient’s parent, guardian, or agent.”  This exception appears by its language to be limited to circumstances in which an HIV test is deemed necessary for the patient’s health.  RI ST 23-6-14(6).

5. Certain Criminal Convictions
Rhode Island law requires mandatory HIV testing of any person convicted of:

“possession of any hypodermic instrument associated with intravenous drug use” (RI ST 21-28-4.20);

“violating any provisions” of the prostitution and lewdness statute (RI ST 11-34-10); and

committing “any sexual offense involving sexual penetration,”  where “the victim, immediate family members of the victim, or legal guardian of the victim” has petitioned the court to order testing  (RI ST 11-37-17).

6. Prisoners
Rhode Island law requires mandatory testing of “every person who shall be committed to the adult correctional institution to answer for any criminal offense, after conviction.”  In addition, “periodic testing for...HIV, including testing at the time of release and when deemed appropriate by a physician” is also required.  (RI ST 42-56-37).

7. Sperm and Tissue Donation
Rhode Island law requires HIV testing of “donated or collected sperm.”  RI ST 23-1-38. The law also requires that the donor of any “organ, tissue, or part of a human body” be tested for HIV prior to transplantation, “provided that this condition shall not apply if there is a bona fide documentable medical emergency which endangers the life of any person.”  RI ST 23-18.6-12.

Privacy and Confidentiality Protections

Can my health care provider disclose my HIV status to someone without my consent?

In Rhode Island, it is “unlawful for any person to disclose to a third party the results of an individual’s AIDS test without the prior written consent of that individual, or in the case of a minor, the minor’s parent, guardian, or agent on a form that specifically states that HIV test results may be released.”  RI ST 23-6-17.

Are there any exceptions to this law?

Yes. A physician may:

• “enter AIDS test results in the medical record, as would be the case with any other diagnostic test,”

• “notify other health professionals directly involved in care of the individual testing positive...or to whom that individual is referred for treatment,”

• notify a person exposed to HIV in the course of their occupational duties, or notify the director of the department of children, youth, and families (DCYF), when an involuntary HIV test yields positive results (see section I, B of this publication regarding involuntary testing),

• “inform third parties with whom an AIDS-infected patient is in close and continuous contact, including but not limited to a spouse; if the nature of the contact, in the physician’s opinion, poses a clear and present danger of AIDS transmission to the third party; and if the physician has reason to believe that the patient, despite the physician’s strong encouragement, has not and will not warn the third party.”  According to procedures established by the Department of Health (Guidelines for Physicians Who May Wish to Inform Third Parties Who Are At Risk of HIV Transmission from HIV Positive Patients, 1989), a physician must repeatedly encourage patients to inform partners directly or through the state’s Partner Notification Service before he or she undertakes to notify the partner, and should document each stage in this process in the patient’s medical record.

Are my HIV test results confidential?

Rhode Island law also has a specific provision for protecting records of HIV test results, which states that: “providers of health care, public health officials, and any other person who maintains records containing information on AIDS test results of individuals shall be responsible for maintaining full confidentiality of these data...and shall take appropriate steps for their protection,” including:

• keeping records secure at all times and establishing adequate confidentiality safeguards for any such records electronically stored;
• establishing and enforcing reasonable rules limiting access to these records; and
• training persons who handle records in security objectives and techniques.

Are there general protections against disclosure of a person's health care information?

Confidentiality of Health Care Information Act

Rhode Island law prohibits the nonconsensual disclosure of confidential health care information, which is described as “all information relating to a patient’s history, diagnosis, condition, treatment or evaluation obtained from a health care provider who has treated the patient.”  RI ST 5-37.3-3(3)(i), RI ST 5-37.3-4(a).

Under the act, this “confidential health care information” cannot be released or transferred without a written consent form containing clear information regarding the proposed uses of the information and the extent of information to be released.  RI ST 5-37.3-4(d).

Are there any exceptions under this act?

Yes. Under the Confidentiality of Health Care Information Act Rhode Island law does, however, permit the release of confidential health care information under the following circumstances:

a) To a physician or dentist, or other medical personnel, who believes in good faith that the information is necessary for diagnosis or treatment of that individual in a medical or dental emergency.

b) Between or among qualified personnel and health care providers within the health care system for purposes of coordination of health care services given to the patient and for purposes of education and training within the same health care facility.

c) To third party health insurers for the purpose of adjudicating health care claims.

What can I do if my privacy has been violated?

A civil suit can be filed for damages, as well as attorney’s fees, for violations of the HIV test result statute or the Confidentiality of Health Care Information Act.  An intentional and knowing violation of these statutes may also result in criminal prosecution.

What about my 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 disclosure of certain types of personal information.

The constitutional right to privacy can only be asserted when the person 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 this right to privacy, courts balance the nature of the intrusion into a person’s privacy against the weight to be given the government’s legitimate reasons for a policy or practice which results in disclosure.

Do health care providers ever have the right to notify my partners of my HIV status?

Physicians

Under Rhode Island law, in very limited circumstances outlined above (see section II, A, 2, a), a physician is permitted to inform a third party of a patient’s HIV status.  This is the only place in Rhode Island law that permits a person to disclose an individual’s HIV status to a third party.
 

Other Health Care Providers, including Psychologists and Mental Health Professionals

A psychologist or mental health professional may learn that a client is engaging in unsafe sex without having disclosed his or her HIV-positive status to the partner.  Many people have asked whether there is a legal basis to breach client or patient confidentiality under these circumstances in order to warn a third party.

While the general Rhode Island patient confidentiality statute (see §II,B) does provide some basis for a health care provider to disclose patient information involuntarily under certain limited circumstances to prevent harm to others, there is a strong argument that this statute does not apply to HIV for two reasons.

First, RI ST 23-6-17 contains a broad prohibition on the disclosure of confidential HIV-related information by any person.  Second, in that same statute, the Rhode Island legislature specifically provided for warning by physicians.  Therefore, the legislature has addressed the issue of warning about HIV status and decided not to permit providers other than physicians to disclose a client’s HIV status to a third party.

Nevertheless, the issue of duty to warn is an evolving and unclear area of law.  Health care providers, including mental health professionals, must consult an attorney or supervisor for advice if he or she believes that a client’s communications justify breaching client confidentiality and disclosing a client’s HIV status to a third person.
 

HIV Reporting Laws

Will my HIV status be reported to the Rhode Island Department of Public Health?

Rhode Island Department of Health regulations (R23-6-HIV-1) require that HIV test results be reported to the Department without identifying the patient.  The Department of Health reporting form contains a code number to ensure anonymity.

AIDS diagnoses must be reported to the Department of Health by patient name.  All information in connection with HIV or AIDS cases is subject to strong confidentiality provisions under Rhode Island law.