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AIDS Workplace Law and Policy: A Systematic Analysis
12(2) Saint Louis University Public Law Review 543 (1990)
David I. Schulman*
The Presidential Commission on the Human Immunodeficiency Virus (HIV) Epidemic in its final report to the President declared that:
"[I]t is clear that the key to an enlightened and compassionate response [to Acquired Immuno Deficiency Syndrome (AIDS)] is education and the planning and development of HIV [AIDS virus] programs and policies well in advance of the occurrence of the first case of HIV infection. The Commission believes that every employer, school system, and community should start that education and planning process now."1
The purpose of this Article is to assist in the planning process the Commission recommends by examining the impact of the epidemic upon workplace law and policy. AIDS requires that we re-examine fundamental workplace assumptions, just as it forces us to re-examine policy in so many other areas--health care delivery and financing, prejudice against homosexuals, drug research and development, drug abuse treatment programs, and care of the chronically ill, for example.
The Article begins with a discussion of the right to privacy, search and seizure, and race as they are emerging in an AIDS workplace context. It then explores AIDS discrimination protections and public health efforts to combat AIDS. In the next section the importance of renewed confidentiality protections in the workplace is examined.
A discussion follows of the special occupational health and safety issues which arise when workers are likely to encounter blood in the workplace. This section examines the risk analysis standard set forth in School Board of Nassau County v. Arline,2 employee screening, the Federal Occupational Health and Safety Administration's proposed rules, and California's efforts to regulate involuntary testing and disclosure. The Article concludes with model guidelines for developing AIDS workplace policies.
I. CONSTITUTIONAL ISSUES
A body of AIDS constitutional law has emerged, largely in response to prisoners' claims,3 particularly in regard to housing. Courts initially deferred to prison officials' judgments whether or not to segregate HlV-infected4 prisoners from the rest of the prison population.5 Recent decisions, however, demonstrate that courts are now prepared to limit the discretion of prison administrators.6
Courts were inclined to defer to the judgment of prison officials when less was known about HIV.7 Furthermore, early housing claims usually rested upon constitutional claims which were relatively well-settled areas of prison law equal protection, due process, and the eighth amendment prohibition against cruel and unusual punishment. With the development of a stable body of HIV medical knowledge, however, the courts have become insistent that this body of knowledge form the basis for decision-making.8
Two recent decisions have also held that a constitutional right, which heretofore had not been applied with much frequency in prison cases is implicated in the meaning and sensitivity of one's HlV-related status. Separate federal courts in Doe v. Coughlin,9 and Woods v. White,10 ruled that the constitutional right to privacy protected the confidentiality of an individual's status as an HlV-infected person, even that of a prisoner. Neither case held that the right was an absolute bar to the exercise of prison authority. However, each established important new boundaries concerning the rights of HlV-infected persons.
The plaintiff in Doe brought a class action suit against the New York state prison system to enjoin the involuntary assignment of all HlV-infected prisoners to a central state facility known to house only persons with HIV. The plaintiff did not object to the existence of the facility nor did the court rule that a central HIV medical facility was itself illegal. Rather, the plaintiff's objection centered:
"[On] the involuntary placement of inmates in D-2; his solution hinges on granting to the inmates the right to choose whether they wish to be housed in D-2. In effect, plaintiff argues that inmates ought to retain the power to make an informed decision as to a waiver of their constitutional right to privacy."11
The court in Doe applied the four-part test of Turner v. Safley12 to determine the validity of the prison program. The court found there was a legitimate penological interest in improving and expediting medical care for prisoners with HlV-related medical conditions.13 The court also found that a properly designed treatment program could include the right of prison authorities to transfer involuntarily prisoners who may benefit from the program.14
However, the program required that all suspected HlV-infected inmates be assigned to the facility while they were evaluated, even though "the medical staff might [later] determine that the inmate should not be placed in D-2, or that even if his condition warranted placement, DOCS [the Department of Correctional Services] would honor an inmate's informed decision to refuse such treatment."15
The court found such a program amounted to a constructive communication of the plaintiff's medical status in violation of the plaintiff's constitutional right to privacy.
"[T]here are few matters of a more personal nature, and there are few decisions over which a person could have a greater desire to exercise control, than the manner in which he reveals . . . [an HIV-related] diagnosis to others. An individual's decision to tell family members as well as the general community that he is suffering from an incurable disease, particularly one such as AIDS, is clearly an emotional and sensitive one fraught with serious implications for that individual. Certain family members may abandon the AIDS victim while others may be emotionally unprepared to handle such news. Within the confines of the prison the infected prisoner is likely to suffer from harassment and psychological pressures. Beyond the prison's walls the person suffering from AIDS is often subject to discrimination"
"Ignorance and prejudice concerning [AIDS is] . . . widespread; the decision of whether, or how, or when to risk familial and communal opprobrium and even ostracism is one of fundamental importance. Within the jurisprudence concerning the right to privacy, and in recognition of the particularly personal nature of the information potentially subJect to disclosure under the state's program, the court determines that the prisoners subject to this program must be afforded at least some protection against the non-consensual disclosure of their diagnosis."16
The plaintiff in Woods v. White17 claimed the prison's medical staff violated his constitutional right to privacy by wrongfully communicating his medical status to non-medical staff and other inmates. The court found that even in prison there was a constitutional right to privacy in one's medical records and in the doctor-patient relationship.
Given the most publicized aspect of the AIDS disease, namely that it is related more closely than most diseases to sexual activity and intravenous drug use, it is difficult to argue that information about this disease is not information of the most personal kind, or that an individual would not have an interest in protecting against the dissemination of such information.18
Unlawful search and seizure has also been addressed in the context of AIDS. In Glover v. Eastern Nebraska Community College Office of Retardation,19 the Eighth Circuit Court of Appeals found that a state agency's mandatory HIV employee testing program violated fourth amendment search and seizure requirements.20
"[The agency's] blood testing policy is not reasonable at its inception under applicable fourth amendment standards. Because the risk of disease transmission has been shown to be negligible in the [agency's] . . . environment, [the agency's] . . . articulated interest in requiring testing does not constitutionally justify requiring employees to submit to a test for the purpose of protecting the clients from an infected employee."21
There have not yet been any race-based AIDS cases reported. However, HIV infection disproportionately affects Hispanic and African Americans.22 HIV policies which adversely affect these two groups may at some point become subject to the strict scrutiny applied to race.
Because of the threat they pose to life itself, epidemics threaten the social fabric. A primal human response to such threats has been ritual acts of purification and scapegoating. With the advent of more scientific understandings of disease, however, the impulse to victimize has given way to more humane and effective responses.23 As a result of the efficacy of public health actions, American courts traditionally gave great deference to public health officials' discretion in implementing measures to control disease.24
However, public health decisions have not always been immune to ignorance and prejudice. When such cases threatened fundamental liberties, the courts as early as 1900 have shown a willingness to subject such decisions to closer scrutiny. For example, in Jew Ho v. Williamson,25 a quarantine following an outbreak of plague which discriminated against Chinese living outside the area of outbreak was forbidden as "an administration of a law 'with an evil eye and an unequal hand.'"26
By the 1940s, antibiotics, sanitation, and vaccines curtailed the need for severe public health measures like quarantine which threatened fundamental liberties. As a result, further development of constitutional standards requiring fair and equal application of public health discretion halted.
In the 1960s, the enactment of modern civil rights protections made new contributions to developing standards which prohibited treatment of some citizens as "other."27 The law's evolution of principles for treating all persons fairly continues today with society's efforts to come to terms with AIDS discrimination.
The epidemic arose at a time when medical advances had led Western societies to believe they would no longer be subject to new infectious epidemics.28 The risk of AIDS infection was posed initially by people who were often already members of marginal social groups stigmatized for their sexual or drug use practices.29 And the method of infection involved substances many cultures consider to be ritually polluting--blood and semen.30
The social context of the epidemic was addressed when the City of Los Angeles enacted the nation's first AIDS anti-discrimination law.31 Los Angeles adapted basic civil rights protections for the physically handicapped--reasonable accommodation, bona fide occupational qualification, otherwise qualified--to the newly emerging issues of the epidemic. By doing so, Los Angeles city officials began the process of forging a public health role for civil rights law. In its AIDS anti-discrimination resolution, the Los Angeles City Council recognized the threat posed by discrimination to public welfare in a series or findings.
That AIDS by its nature has created a discrete and insular minority of our citizens....
That the persons afflicted with AIDS represent a segment of our population particularly victimized due to . . . the present climate of misinformation, ignorance and fear in the general population.
That discrimination against victims of AIDS or AIDS related conditions exists....
That persons with AIDS or AIDS related conditions are faced with discrimination in employment, housing, medical and dental services, business establishments, city facilities, city services and other public accommodations;
That such discrimination cuts across all racial, ethnic, and economic lines;
That such discrimination poses a substantial threat to the health, safety and welfare of the community. . . . 32
The following year, then Surgeon General C. Everett Koop noted that "[i]n addition to illness, disability, and death, AIDS has brought fear to the hearts of most Americans--fear of disease and fear of the unknown."33 The Presidential Commission on the Human Immunodeficiency Virus Epidemic made this finding a central point in its final report to the President.
Calling for strong federal, state, and local AIDS discrimination legislation, the Commission declared AIDS discrimination to be the major impediment to the nation's public health efforts against AIDS.
HlV-related discrimination is impairing this nation's ability to limit the spread of the epidemic....
As long as discrimination occurs . . . individuals who are infected with HIV will bc reluctant to come forward for testing, counseling, and care. This fear of potential discrimination will limit the public's willingness to comply with the collection of epidemiological data and other public health strategies, [and] will undermine our efforts to contain the HIV epidemic . . . .
[D]iscrimination against persons with HIV infection in the workplace setting, or in the areas of housing, schools, and public accommodations, is unwarranted because it has no public health basis.
Persons with HIV infection must be clearly and definitively guaranteed their civil rights and be protected against discrimination . . . . 34
AIDS discrimination laws are important public health tools. Their core holding that those with HIV should be treated with the same fairness accorded anyone with a physical handicap provides a standard of behavior which guides citizens past their fears towards humane understanding and action. And by fostering an atmosphere of knowledge and trust, AIDS discrimination laws strengthen the capacity of public health authorities to develop effective intervention measures.
A broad-based consensus about the importance of AIDS discrimination laws has developed since Los Angeles' action. Shortly after enactment of its ordinance, several California cities enacted similar AIDS-specific protections.35 In 1987, in School Board of Nassau County v. Arline,36 the United States Supreme Court issued a ruling which clarified the appropriate role of physical handicap law in protecting persons with contagious diseases.
The Court in Arline held that persons with contagious diseases were handicapped within the meaning of the Rehabilitation Act of 1973,37 which prohibits discrimination against persons with physical handicaps. The Court noted that "[f]ew aspects of a handicap give rise to the same level of public fear and misapprehension as contagiousness."38 In a footnote, the Court stated "[t]he isolation of the chronically ill and of those perceived to be ill or contagious appears across cultures and centuries, as does the development of complex and often pernicious mythologies about the nature, cause, and transmission of illness...."39 The following year, the Ninth Circuit Court of Appeals in Chalk v. U.S. District Court40 held that AIDS was a contagious disease within the meaning of Arline, and therefore a protected handicap within the meaning of the Federal Rehabilitation Act.41 Today, many states have reinterpreted their physical handicap protections to include HIV,42 and the proposed Americans with Disabilities Act of 198943 would significantly broaden federal protections for handicapped individuals.
All HIV-related policies must reflect sensitivity to the specially confidential nature of HlV-related information. The law strictly regulates disclosure of such information because of the powerful potential for social stigma of wrongful disclosures.44 Such disclosures can result in violations of constitutional rights, statutory confidentiality protections, discrimination, invasion of privacy, and actions alleging intentional or negligent infliction of emotional distress. Significant consequential damage can result from wrongful disclosures because of the special capacity of HIV information to lead to wrongful terminations, loss of insurance, evictions, and even the loss of friends and family.
IV. OCCUPATIONAL HEALTH AND SAFETY
The HIV epidemic has focused attention upon the occupational health and safety issues faced by workers such as health care providers and police who encounter blood in the workplace. Though there is little risk of HIV workplace transmission,45 the U.S. Occupational Safety and Health Administration has recently proposed a rule which would further reduce these risks.46
The courts have commented upon the nature of these risks in a series of rulings. In School Board of Nassau County v. Arline , the Supreme Court held that a significant risk to others, despite reasonable accommodation, must be found before handicapped infectious persons may be removed from the workplace.47
"A person who poses a significant risk of communicating an infectious disease to others in the workplace will not be otherwise qualified for his or her job if reasonable accommodation will not eliminate that risk. The Act would not require a school board to place a teacher with active, contagious tuberculosis in a classroom with elementary school children."48
To determine whether such a risk exists, the Court evaluated several crucial variables:
"The basic factors to be considered in conducting this inquiry . . . should include . . . reasonable medical judgments given the state of medical knowledge, about (a) the nature of the risk (how the disease is transmitted), (b) the duration of the risk (how long is the carrier infectious), (c) the severity of the risk (what ts the potential harm to third parties) and (d) the probabilities the disease will be transmitted and will cause varying degrees of harm."49
Applying Arline, the Ninth Circuit found an "overwhelming evidentiary consensus of medical and scientific opinion regarding thc nature and transmission of AIDS.50 Other courts have made similar findings.51 As a result, under federal law most employer efforts to screen employees for HIV to protect others would not be permitted.
In place of attempts to identify and remove infected individuals from the workplace, the United States Centers for Disease Control recommends the use of universal infectious disease control precautions.52 These recommendations have been codified in the proposed OSHA rule. The core principle to this strategy is the universal use of appropriate workplace practices and precautionary barriers wherever exposure to blood and other infectious fluids is likely.53
The proposed OSHA rule requires minimum follow-up procedures for workplace exposures.54 The employee medical records kept pursuant to this rule are to be "(A) Kept confidential; and (B) . . . not disclosed or reported to any person within or outside the workplace except as required by this section or as may be required by law."55 In a comment on the proposed rule, OSHA notes that it did not expect source persons to be tested against their wishes.56 In contrast, the state of California has enacted three separate statutory schemes which permit the involuntary testing of source persons under certain circumstances.57
Proposition 9658 permits court-ordered HIV antibody testing of persons suspected of committing certain sex crimes59 or criminally assaulting a peace officer, firefighter, or emergency medical personnel.60 California Penal Code sections 7500-7553 authorize testing of certain correctional institution inmates, persons arrested or in custody regardless of whether they have been charged with a crime, and persons on probation or parole.61 Penal Code section 1524.1 permits court-ordered testing of suspects who may have exposed crime victims to HIV.62
Proposition 96 and Penal Code sections 7500-7553 also require disclosure of certain other HlV-related information. Proposition 96 requires custodial medical personnel who obtain certain HlV-related information about any suspect in custody to disclose such information to the officer in charge of the custodial facility.63 The Penal Code requires supervisory and medical personnel in correctional institutions to notify law enforcement employees who have had "direct contact with the bodily fluids" of HlV-infected persons in custody.64
California's statutes seek to balance the privacy interests of HIV-infected persons with the public health interest in halting HlV's further spread; the custodial interest in ensuring safe facilities; the occupational health and safety interest in protecting law enforcement, emergency service and custodial employees; and the public safety interest in deterring criminal wrong-doing.
However, these statutes lack clarity and consistency.65 For an issue like HIV, which requires particularly clear and consistent policies, such ambiguities pose daunting administrative problems and underscore the need for model guidelines and procedures.
V. MODEL GUIDELINES AND PROCEDURES
When the City of Los Angeles enacted its AIDS anti-discrimination law in 1985,66 it became the nation's first jurisdiction to establish policy based upon the facts of HIV transmissibility.67 The process subsequently undertaken by Los Angeles to develop AIDS workplace policies and procedures may assist others seeking to develop comprehensive AIDS workplace policies.68
First, the Los Angeles City Council directed all city departments to engage in a three-step process of policy development and education.
Employees are [to be] regularly provided with . . . training, information and updates. . .;
All policies, procedures and activities [are to] thoroughly comply with current AIDS information regarding prevention, transmission and protection of civil rights; and
Departmental interactions with the public are [to] . . . educate citizens on how to prevent AIDS virus transmission and protect civil rights.69
Second, city leaders were given special training to insure knowledgeable leadership.70 Third, city departments were advised to form departmental AIDS committees to coordinate implementation of the Council's directive.71
Departmental committees were to consist of representatives from senior management, personnel, affirmative action, wellness, workplace safety, and from each workplace function. Each committee was to review all departmental activities affected by HIV, including workplace safety, discrimination, workplace confidentiality, reasonable accommodation, and community outreach.
Committees were to coordinate departmental AIDS education activities, serve as the resource for employee questions and concerns maintain up-to-date employee information materials, monitor city AIDS polices, and serve as the link with city-wide AIDS efforts.72 Special staff training and institutional procedures were to be implemented to prevent the wrongful disclosure of individual's HlV-related information.
The city's medical director advised all departments to implement several first-aid measures.73 Latex gloves were ordered to be placed in all first aid kits for use as a barrier by any employee rendering first aid to a bleeding individual.
Face masks with one way resuscitative valves were to be kept in all first aid kits to be used as a barrier to body fluids which may contain blood when providing cardio-pulmonary resuscitation. These measures were to be used universally whenever rendering aid. Employees were also to be instructed in proper disinfection techniques following the rendering of first aid.74
The AIDS workplace policies discussed in this Article provide a model of how law can embody society's commitment to its foundational values during uncertain and frightening times. No matter how equitable and communally beneficial they are designed to be, however, the effectiveness of AIDS law and policy depends upon their implementation by firm, knowledgeable, and aggressive workplace leadership. Staff must be highly-trained, truly universal precautions implemented, and workplace exposure evaluations and follow-up established. Such leadership requires that we separate ourselves from the primitive human impulse to scapegoat and victimize.
AIDS is an acute crisis layered atop a range of chronic social concerns. Law once responded to such times by sanctioning the impulse to victimize and reject those with less power, those who were not understood, those who were blamed for society's ills. But law now has evolved requirements for treating others fairly, even during such times of social turmoil--particularly during such times. As we struggle today, law can guide us past our primal impulses to blame and victimize, and contribute to alleviating the stress and pain of the epidemic.
*Supervising Attorney, AIDS Discrimination Unit, Los Angeles City Attorney's Office. B.A., Stanford, 1973; J.D., UCLA, 1978.
In January 1986, Los Angeles City Attorney James K. Hahn appointed the author to be the nation's first full-time government AIDS discrimination attorney. The assignment has since been expanded to include advising City staff on AIDS law and policy. The author wishes to thank Claude Hilker, James Pearson, Frederick Merkin, Charles Goldenberg. and Lewis Unger of the City Attorney's Office for their support and guidance in the drafting of the Opinion upon which this Article is based. See Los Angeles City Attorney Opinion No. 88:19 (Aug. 25, 1989). See also Los Angeles City Attorney Memorandum Re: City Department AIDS-Related Policies (Sept. 8, 1989).
1. REPORT OF THE PRESIDENTIAL COMMISSION ON THE HUMAN IMMUNODEFICIENCY VIRUS EPIDEMIC 119 (1988) [hereinafter REPORT].
2. 480 U.S. 273 (1987).
3. E.g., United States v. Moore, 846 F.2d 1163 (8th Cir. 1988)(assault with a deadly weapon); Woods v. White, 689 F.Supp. 874 (W.D. Wis. 1988) (right to privacy in prison medical records); Fenton v. City of Philadelphia, No. 86-3S29, slip op. (E.D. Pa. filed Sept. 22, 1986) (due process claim); Torres v. City of Philadelphia, No. 863826, slip op. (E.D. Pa. filed Sept. 19, 1986) (failure to train staff; Storms v. Department of Corrections, No. 85-7186, slip op. (S.D. N.Y. decided Apr. 18, 1986) (right to counsel).
4. Whenever possible, this article will use the terms "HIV infection" or "HIV-related medical conditions" rather than AIDS or ARC, since "AIDS" technically refers to thc most extreme form of HIV infection and "ARC" to a slightly less severe form. See Centers for Disease Control, Human Immunodeficiency Virus (HIV) Infection Codes. Official Authorized Addendum ICD-9-CM, 36 MORBIDITY & MORTALITY REP. SUPP. 7, at 48 (1987).
5. The following group of cases upheld administrative decisions to segregate infected prisoners: Muhammad v. Carlson, 845 F.2d 175 (8th Cir. 1988); Baez v. Rapping, 680 F Supp. 112, (S.D. N.Y. 1988), Judd v. Packard, 669 F Supp. 741 (D. Md. 1987); Powell v. Department of Corrections, 647 F Supp. 968 (N.D. Old. 1986), Ruggieri v. Frame, No. 86-5959, slip op. (E.D. Pa. Oct. 23, 1986); Williams v. Sumner, 648 F Supp. 510 (D. Nev. 1986); Cordero v. Couglin, 607 F Supp. 9 (S.D. N.Y. 1984).
The following group of cases upheld administrative decisions to house infected prisoners with the rest of the prison population: Glick v. Henderson, 855 F.2d 536 (8th Cir. 1988); Jarrett v. Faulkner, 662 F Supp. 928 (S.D. Ind. 1987); Smith-Bey v. Capt. of the Guard, No. 86-3274, slip op. (D. Ka. filed Dec. 11, 1986); Foy v. Owens, No. 85-6909, slip op. (E.D. Pa. filed May 14, 1986).
6. See Doe v. Coughlin, 697 F Supp. 1234 (N.D. N.Y. 1988) (preliminary injunction granted to prisoner seeing to prohibit involuntary transfer to separate dormitory for HlV-infected prisoners); Woods v. White , 689 F Supp. 874 (W.D. Wis. 1988) (wrongful disclosure of prisoner's HIV test result by prison medical staff violated constitutional right to privacy). See also Isolation of AIDS Prisoner Ends. N.Y. Times, Aug. 15, 1989, at B3, col. 1. "The state of Connecticut has agreed to stop segregating AIDS-infected inmates from the general prison population, settling a 1988 Federal lawsuit and establishing guidelines that would have nationwide impact." Id.
7. See, e.g., Jarrett, 662 F. SUPP. at 929. "The problem of protecting prisoners from AIDS is best left to legislature and prison administrators." Id.
8. See infra Part IV and notes 47-51. See also Burris, Rationality Review and the Politics of Public Health, 34 VILL L REV. 933 (1989).
9. 697 F.SUPP 1234 (N.D. N.Y. 1988).
1010. 689 F.SUPP. 874 (W.D. Wis. 1988).
11. Doe, 697 F. SUPP. at 1241.
12. 482 U.S. 78 (1988).
13. Doe, 697 F. SUPP. at 1240.
14. Id. at 1242.
15. Id. at 1241 (footnotes omitted).
16. Id. at 1237-38 (footnote omitted).
17. 689 F. Supp. 874 (W.D. Wis 1988).
18. Id. at 876 (citation omitted). See also Doe v. Barrington , 729 F Supp. 376 (D.NJ. 1990) (police officer's wrongful disclosure of arrestee's voluntarily disclosed HIV status violated the constitutional right to privacy of the arrestee's family).
22. See. e.g., Nickens, AIDS, Race and Law: The Social Construction of Disease, 12 NOVA L. REV. 79 (1988); Dalton, AIDS in Blackface, 118 DAEDALUS 205 (1989).
23. See generally Dolgin, AIDS: Social Meanings and Legal Ramifications, 14 HOFSTRA L REV. 193 (1985); Brandt. AIDS. From Social History to Public Policy. 14 L MED & HEALTH CARE 231 (1986); W MCNEIL PLAGUES AND PEOPLE (1976); M DOUGLAS, PURITY AND DANGER: AN ANALYSIS OF CONCEPTS OF POLLUTION AND TASOO (1966); V TURNER, THE RITUAL PROCESS STRUCTURE AND ANTI-STRUCTURE (1969); Adler, Tum'ah and Tahara: Ends and Beginnings, in THE JEWISH WOMAN 63 (E. KOLTON ed. 1976).
24. See. eg. Jacobson V. Mass., 197 U.S. 11 (1905).
25. 103 F. 10 (N.D. Cal. 1900).
26. Id. at 24 (citation omitted).
"In July 1918, Congress allocated more than $1 million for the detention and isolation of venereal carriers. During the war more than 30,000 prostitutes were incarcerated in institutions supported by the federal government. . . . [T]he program of detention and isolation, it should be noted, had no impact on rates of venereal disease, which increased dramatically during the war. Although this story is not well known, it is not unlike the internment of Japanese-Americans during World War II." Brandt, supra note 23, at 233 (emphasis added). See also Korematsu vs. United States, 319 U.S. 432 (1943) (internment or Japanese-Americans constitutional).
27. See generally K. KARST, BELONGING TO AMERICA: EQUAL CITIZENSHIP AND THE CONSTITUTION (1989); Karst, Forward: Equal Citizenship Under the Fourteenth amendment, 91 HARV L. REV (1977).
28. Brandt, supra note 23, at 233.
29. See, e.g., Dolgin, supra note 23, at 197-209.
30. See, e.g. M DOUGLAS, supra note 23. See generally, Schulman, AIDS Discrimination: Its Nature, Meaning and Function, 12 NOVA L REV 1113, 1114-19 (1988).
31. L.A. MUN CODE Section(s) 45.80-45.93 (1985). See Schulman, supra 30 for a history of Los Angeles' law and enforcement strategy.
32. Id. at Section 45.80.
33. SURGEON GENERAL'S REPORT ON ACQUIRED IMMUNODEFICIENCY SYNDROME 3 (1986). See also NATIONAL ACADEMY OF SCIENCES. CONFRONTING AIDS UPDATE 1988. at 63 (1988) [hereinafter NATIONAL ACADEMY].
[T]he fear of discrimination is a major constraint to the wide acceptance of many potentially effective public health measures. Public health programs will be most effective if they are accompanied by clear and strict sanctions to prevent unwarranted discrimination against those who are infected with HIV or who are at risk of infection. NATIONAL ACADEMY, at 63.
34. REPORT, supra note 1, at 119-20.
35. See generally WEST HOLLYWOOD MUN CODE Section(s) 4270-4282 (1985). SAN FRANCISCO MUN CODE Section(s) 3801-3860 (1985). See also Jasperson v. Jessic's Nail Clinic, 265 Cal. Rptr. 301 (Cal.Ct. App. 1989) (municipal AIDS discrimination laws constitutional)
36. 480 U.S. 273 (1987).
37. 29 U.S.C. Section(s) 701-796 (1973).
38. Arline, 480 U.S. at 284.
39. Id. at n.12 (citing R DUBOS & J DUBOS, THE WHITE PLAGUE (1952); S SONTAG, ILLNESS AS METAPHOR ( 1978)). The Presidential Commission on the HIV Epidemic noted Arline's importance in combatting AIDS discrimination. "The Commission supports the reasoning in the Arline decision and believes that it offers a balanced approach which secures the rights of infected individuals while not jeopardizing the health of those who are not infected." REPORT, supra note 1, at 122.
40. 840 F.2d 701 (9th Cir. 1988).
41. Compare Leckelt v. Board of Commissioners , 714 F. Supp. 1377 (E. D. La. 1989) (appeal pending, 5th Cir. No.89-3256) for a limiting interpretation of thc Federal Rehabilitation Act's application to AIDS. But see the letter ruling issued Dec. 13, 1989, by the Office of Civil Rights. U.S. Dept. of Health and Human Services, which directly contradicts the Leckelt trial court's ruling. Administration Repudiates Court Decision On HIV Testing. Lesbian/Gay Law Notes, Feb. 1990, at 7.
42. See e.g.. Raytheon Co. v. Fair Employment and Housing Comm'n, 261 Cal. Rptr. 197 (Cal. Ct. App. 1989) (California Fair Employment and Housing Act includes persons with AIDS); Cain v. Hyatt Legal Services . No. 88-665, (E.D. Pa Apr 3, 1990) (LEXIS, Genfed library, Current file) (Pennsylvania's Human Relations Act applies to persons with AIDS). See generally Leonard, AIDS. Employment and Unemployment 49 OHIO ST L.J. 929, 939-40 and accompanying notes 74-89 (1989)
44. See especially Doe v. Borough or Barrington , 729 F. Supp. 376 (D.N.J. 1990) (wherein children were forced from school following wrongful disclosure by a police officer of their father's HIV status). Sec generally Dunlap, AIDS Discrimination in the United States: Reflections on the Nature of Prejudice in a Virus 34 VILL L REV 909 (1989).
45. See, e.g., Centers for Disease Control. Update Human Immunodeficiency Virus Infections in Health-Care Workers Exposed to Blood of Infection Patients, 36 MORBIDITY & MORTALITY WEEKLY REP. 285-89 (1987); U S DEPT OF HEALTH AND HUMAN SERVICES GUIDELINES FOR PREVENTION OF TRANSMISSION OF HUMAN IMMUNODEFICIENCY VIRUS AND HEPATITIS B VIRUS TO HEALTH-CARE AND PUBLIC-SAFETY WORKERS 3-5 (Feb. 1989) [hereinafter GUIDELINES].
46. Occupational Exposure to Bloodborne Pathogens; Proposed Rule and Notice of Hearing, 54 Fed. Reg. 23,042-139 (proposed May 30, 1989) [hereinafter Proposed Rule]. The rule would apply to all occupational exposures to blood and other potentially infectious materials-- including exposures of police, firefighters, and paramedics. Id at 23,134, Proposed Rule Section 1910.1030(a). Each employer who has employees with occupational exposure risks would be required to identify and document the tasks and procedures where occupational exposures may take place and establish a written infection control plan to minimize or eliminate exposure. Id at. 23,135, Proposed Rule Section 1910.1030(c). The general method of compliance would be through the use of universal precautions to prevent contact with blood and other potentially infectious material. Id. at 23,135, Proposed Rule Section 1910.1030(d)(1). There are extensive and useful Agency comments accompanying the proposal.
47. 480 U.S. 273 (1987) (persons with infectious diseases are handicapped within the meaning of the Federal Rehabilitation Act of 1973).[T]he basic purpose of Section 504, [of the Act] . . . is to ensure that handicapped individuals are not denied jobs or other benefits because of the prejudiced attitudes or the ignorance of others. My amending the definition of "handicapped individual" to include not only those who are actually physically impaired, but also those who are regarded as impaired and who, as a result, are substantially limited in a major life activity, Congress acknowledged that society's accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment. Few aspects of a handicap give rise to the same level of public fear and misapprehension as contagiousness. Id at 284 (footnotes omitted).
48. Id. at 287 n. 16 (citations omitted).
49. Id. at 287-88 (quoting amicus curiae Brief of American Medical Association, at 19 (No. 85-1277)).
50. Chalk v. United States Dist. Ct., 840 F.2d 701, 706 (9th Cir. 1988) (no risk of transmission from teacher to student). The court in Chalk specifically rejected the lower court's contention that any chance of transmission was sufficient to support a finding that a person with a contagious disease posed a significant risk to others. Id. at 707-78. The court found "no evidence of any significant risk to children or others at the school. To allow the court to base its decision on the fear and apprehension of others would frustrate thc goals of section 504." Id. at 711.
51. See, e.g., Glick v. Henderson 855 F.2d 536 (8th Cir. 1988) (rejection of prisoner's contention that the prison's refusal to segregate inmates with AIDS constituted a colorable constitutional claim): The possibility of the transference of AIDS through [coming into contact with the sweat of other inmates during work detail; being bitten by mosquitos which have bitten other inmates; being sneezed on by other inmates; eating food prepared by other inmates; or being transferred to cells previously occupied by other inmates] is simply too remote. . . [T]he risks being alleged . . . are unsubstantiated fears unrecognized by the mainstream medical community.Id. at 539-40; Glover v. Eastern Neb. Community Office of Retardation , 867 F.2d 461 (8th Cir. 1989), cert. denied 110 S.Ct. 321 (1989) (risk of transmission of HIV from employees of a state mental disability agency to its clients was "extremely low, reaching zero"):The medical evidence is undisputed that the disease is not contracted by casual contact. The risk of transmission of the disease to clients as a result of a client biting or scratching a staff member, and potentially drawing blood, is extraordinarily low, also approaching zero. The risk of transmission of the virus from staff to client due to the staff member attending to a client's personal hygiene needs is zero.Glover at 463 (citing Glover v. Eastern Neb. Community Office of Retardation , 686 F. Supp. 243, 249 (D. Neb. 1988); Ray v. School Dist. of DeSoto County, 666 F Supp. 1524 (M.D. Fla. 1987) (HlV-infected school-children ordered back to school):Extensive and numerous studies have consistently found no apparent risk of HIV infection by individuals exposed through close, non-sexual contact with AIDS patients. These studies have demonstrated that contacts involving sharing of household items, such as toothbrushes, eating utensils, and baths or toilets, do not lead to HlV-infection. Similarly, there is no evidence that close personal, but non-sexual interaction, such as giving a bath, shaking hands, or kissing on the lips, will cause HIV infection.Ray, at 1530-31. See also United States v. Moore, 846 F.2d 1163 (8th Cir. 1988) (insufficient evidence to establish that AIDS may be transmitted by a bite); Thomas v. Atascadero Unified School Dist. , 662 F. Supp. 376 (C.D. Cal. 1987) (student with AIDS involved in a biting incident ordered re-admitted to classroom): "[T]he AIDS virus is not spread in the air by infected droplets ... [it] is fragile...." Thomas, at 380; Doe v, Dolton Elementary School Dist., 694 F SUPP. 440 (N.D. 111. 1988) (student with AIDS re-admitted to classroom).
52. See e.g. Centers for Disease Control, Update: Universal Precautions for Prevention of Transmission of Human Immunodeficiency Virus Hepatitis B Virus and other Bloodborne Pathogens in Health-Care Settings 37 MORBIDITY & MORTALITY WEEKLY REP. 377-88 (1988).
53. All blood, body fluids known to contain high concentrations of bloodborne pathogens, or other body fluids which might contain such fluids, must be treated as infectious. GUIDELINES, supra note 45, at 6. As OSHA states in its preamble to the proposed rules, universal infectious disease control precautions are "a concept of infection control which . . . encompasses a variety of associated practices other than medical procedures . . . such as use of personal protective equipment, disposal of sharps [e.g., needles, scalpels, and knives] in sharps containers, housekeeping, and so forth." Proposed Rule, supra note 46, at 23,115.
Universal precautions should include "work practices designed to minimize or eliminate exposure to blood and other infectious fluids and] . . . use of personal protective equipment (i.e., gloves, masks, and protective clothing), which provide a barrier between the worker and the exposure source." GUIDELINES, supra note 45, at 7. See also Proposed Rule, supra note 46, at 23,113; US DEPT OF HEALTH & HUMAN SERVICES: A CURRICULUM GUIDE FOR PUBLIC-SAFETY AND EMERGENCE-RESPONSE WORKERS PREVENTION OF TRANSMISSION OF HUMAN IMMUNODEFICIENCY VIRUS AND HEPATITIS B VIRUS (Feb. 1989) [hereinafter CURRICULUM GUIDE]; US DEPT OF JUSTICE, AIDS IN CORRECTIONAL FACILITIES: ISSUES AND OPINIONS (3d ed. 1988) [hereinafter CORRECTIONAL FACILITIES]; U.S. DEPT OF JUSTICE, 1988 UPDATE AIDS IN CORRECTIONAL FACILITIES (June 1989) [hereinafter UPDATE]. The Occupational Safety and Health Administration notes that its proposed rules would not require an employer to identify occupational exposures which cannot be reasonably anticipated. [O]ne employee may assist another employee who has a nosebleed or who is bleeding as the result of a fall. This would not be considered an occupational exposure unless the employee who provides assistance is a member of a first aid team or is otherwise expected to render assistance as one of his or her duties .Proposed Rule, supra note 46, at 23,11 2.
54. Following a report of an exposure incident, the employer shall make available to each employee . . . a confidential medical evaluation and follow-up, including at least the following elements: Documentation of the route(s) of exposure, HBV and HIV antibody status of the source patient(s) (if known), and the circumstances under which the exposure occurred.If the source patient can be determined and permission is obtained, collection of and testing of the source patient's blood to determine the presence of HIV or HBV infection. Collection of blood from the exposed employee as soon as possible after the exposure incident for the determination of HIV and/or HBV status. Actual antibody or antigen testing of the blood or serum sample may be done at that time or at a later date if the employee so requests. Follow-up of the exposed employee including antibody or antigen testing, counseling, illness reporting, and safe and effective post-exposure prophylaxis, according to standard recommendations for medical practice.Id. at 23,139. Proposed Rule Section 1910.1030(h)(iii).
55. Id. at 23,139. Proposed Rule Section 1910.1030(h)(iii).
56. If the source patient of an employee's occupational exposure can be determined, permission for antigen or antibody testing of the source patient's blood shall be obtained, if possible, and testing shall be performed to determine HBV [hepatitis B] and HIV infection status.... OSHA believes that testing of source patient(s) for infection status provides exposed employees with information that will assist them in their decisions regarding testing of their own blood, complying with other elements of post-exposure management, and using precautions to prevent possible infection in others.... Consistent with the opinion expressed by the CDC [U.S. Centers for Disease Control] and the majority of commentators. OSHA proposes that testing of source patients following an employee exposure be accomplished after consent is obtained from the source patient. It is to be expected that some patients will not consent to testing, and OSHA does not expect the employee to test the source patient against his or her wishes.Id. at 23,126-27 (emphasis added).
57. Source persons may consent to testing. However, voluntary testing is specially regulated by statute. CAL. HEALTH & SAFETY CODE Section 199.20-199.28 (West Supp. 1990). Test result disclosures may not be compelled in "any state, county, city, or other local civil, criminal, administrative, legislative, or other proceeding]." Id. at Section 199.20. Unauthorized disclosures to any third party are subject to civil and criminal penalties. Id. at Section 199.21(a)-(e). Test results may not be used for employment or insurance purposes. Id. at Section 199.21(n. Written authorization is required for each separate disclosure. Id. at Section 199.21(g). Special written consent is required before testing. Id. at Section 199.22. A series of exceptions to these protections permit testing and disclosure under certain circumstances. Unauthorized disclosures may be made to care providers by the test subject's physician. Id. at Section 199.21S. Only informed, not written, consent to test need be obtained by the treating physician. Id. at Section 199.22. The treating physician may make unauthorized disclosures under certain circumstances to a patient's spouse, sexual or needle-sharing partner, or the county health officer if no identifying information about the patient is disclosed. Id. at Section 199.2S. Testing for life or disability insurance is permitted under certain circumstances. CAL INS. CODE Section(s) 799-799.09 (West Supp. 1989). The Youth Authority may test under certain circumstances. CAL HEALTH & SAFETY CODE Section 199.221 (West Supp. 1990); CAL. WELF & INST CODE Section 1768.9 (West Supp. 1990). Prisons may test under certain circumstances. CAL HEALTH & SAFETY CODE Section 199.222 (West Supp. 1990); CAL PENAL CODE Section(s) 7500-7553 (West Supp. 1990). Courts may order testing of persons charged with crimes under certain circumstances. CAL HEALTH & SAFETY CODE Section(s) 199.95-199.99 (West Supp. 1990); CAL PENAL CODE Section 1524.1 (West Supp. 1990). Courts must order testing of persons convicted of certain crimes. CAL PENAL CODE Section(s) 1202.1 & 1202.6 (West Supp. 1990).
58. Codified as CAL HEALTH & SAFETY CODE Section(s) 199.95-199.99 (West Supp. 1990). See Johnetta v. Municipal Ct., 267 Cal. Rptr. 666 (Cal. Ct. App. 1990) (Proposition 96 constitutional).
59. Id. at Section 199.96.
60. Id. at Section(s) 199.97-199.98. The persons who may request testing include the sex crime victims; the peace officers, firefighters or emergency medical personnel who were assaulted; or the employing agency, officer, or entity of such personnel. Id. at Section(s) 199.96-199.97 The magistrate or court having jurisdiction of the criminal complaint or petition shall decide whether or not to require testing. Id. An order to test must issue upon a finding "that probable cause exists to believe that a possible transfer" took place. Id. Transmission is defined as a "possible transfer of blood, saliva, semen, or other bodily fluids" by "biting, scratching, spitting, or transferring blood or other bodily fluids on, upon, or through the skin or membranes." Id. The persons to receive test results are the defendant or minor; the sex crime victims: each peace officer, firefighter, and emergency medical personnel named in the petition, and his or her employing agency, officer, or entity; and if the defendant or minor is incarcerated or detained, the officer in charge and the chief medical officer of the facility in which such person is incarcerated or detained; the Calif. Department of Health Service; and the minor's parents or guardians. Test results sent to designated recipients must include a specifically required disclaimer. Id. at Section(s) 199.96-199.98. Test results are confidential as follows: The court shall order all persons, other than the test subject, who receive test results pursuant to Section(s) 199.96 or 199.97, to maintain the confidentiality of personal identifying data relating to the test results except for disclosure which may be necessary to obtain medical or psychological care or advice. Id. at Section 199.98(e). The court ordering the test must order all persons receiving the results to maintain confidentiality. Id. Test results are not admissible in any criminal or juvenile proceeding. Id. al Section 199.98(f).
61. CAL PENAL CODE Section 7510(a) (West Supp. 1990). The persons who may request testing are certain law enforcement employees, custodial officers or correctional staff. Id. at Section(s) 7510-7516. The chief medical officer shall decide whether or not to require testing. Id. at Section 7511. Concerning probable cause for issuance of test orders, the following factors are to he taken into account: whether transmission could have resulted; whether the person could be categorized as possibly having AIDS; and whether another's health may have been endangered. Id. at Section 751 I(b). Transmission is defined as "an exchange of body fluids . . . which could have resulted in AIDS infection, based on the latest written guidelines and standards established by the federal Centers for Disease Control and the State Department of Health Services." Id. at Section 7511(b)(1). "[T]est results shall be sent by the chief medical officer to the designated recipients." Id. at Section 7530(d). Test results sent to designated recipients must include the disclaimer contained in Section 7530(d). The chief medical officer shall ensure that counseling is provided to test subjects and persons requesting testing "at the time the initial report or request for tests is made, at the time when tests are ordered, and at the time when test results are provided to the employee, inmate, or test subject." Id. at Section 7514. "All persons, other than the test subject, who receive test results shall maintain the confidentiality of personal identifying data relating to the test results, except for disclosure which may be necessary to obtain medical or psychological care or advice, or to comply with this title." Id. at Section 7530(f). Disclosure of the identity of the source person is prohibited in most circumstances. Id. "The specimens and the results of the tests shall not be admissible evidence in any criminal or disciplinary proceeding." Id. at Section 7530(g). Records compiled pursuant to procedures for HIV testing are confidential. Id at Section 7517. Willful false reporting in conjunction with a report or a request for testing is a misdemeanor. Id. at Section 7540(a). Willful use or disclosure of test results is a misdemeanor. Id at Section 7540(b). Willful or negligent breach of the responsibility for protecting the confidentiality of test results is grounds for violation of a laboratory's testing contract. Id. at Section 7530(c).
62. CAL. PENAL CODE Section 1524.1 (West Supp. 1990). An order to test may issue upon a finding "there is probable cause to believe that the accused committed the offense" and that fluid "has been transferred." Id at Section 1524.1(b)(1). Transference is defined as a finding that "blood, semen, or any other body fluid identified by the State Department of Health Services in appropriate regulations as capable of transmitting the human immunodeficiency virus has been transferred...." Id. The local health officer is to disclose test results to the victim and the accused Id. at Section 1524(g). No positive test may be disclosed "without also providing or offering professional counseling." Id. "Any victim who receives information from the health officer pursuant to subdivision (g) may disclose the test results as the victim deems necessary to protect his or her health and safety or the health and safety of his or her family or sexual partner." Id. at 1524.1(i). Test results may not be disclosed "for the purpose of a charging decision by a prosecutor. . ." Id. at Section 1524.1(a). Test results "shall not be used in any criminal proceeding as evidence of either guilt or innocence." Id. at Section 1524.1(k).
63. CAL HEALTH & SAFETY CODE Section 199.99(a) (West Supp. 1990). Information to be disclosed includes laboratory tests, statements by the suspect to medical personnel, and results of medical examinations or tests which indicate the suspect is HIV-infected or has a communicable disease. Id. at Section 199.99(b). Persons to be notified by the officer in charge are "all employees, medical personnel, contract personnel. and volunteers providing services at such facility who have or may have direct contact" with the suspect or his or her "bodily fluids." Id. at Section 199.99(c). Information to be disclosed is "the substance of the information received." Id. The purpose of disclosure is to enable staff to take "appropriate action" to provide for the care of the person in custody, the safety of others in custody, and their own safety. Id. Persons to whom such information is disclosed must maintain its confidentiality. Id. at Section 199.99(d). It is a misdemeanor to wilfully disclose such information to persons not authorized to receive it. Id. at Section 199.99(e).
64. CAL PENAL CODE Section 7522(a) (West Supp. 1990). Law enforcement agencies "shall be responsible for informing staff of the provisions" of these sections and for assisting in their implementation. Id. at Section 7551. Parole or probation officers must disclose certain HlV-related information to local law enforcement officers whom they contact for assistance in apprehending or taking into custody an HlV-infected probationer or parolee with a record of assault on a peace officer. Id. at Section 7521(b). It is a misdemeanor for officers receiving such information to fail to maintain its confidentiality. Id. at Section 7521(c).
65. Standards and procedures overlap, are inconsistent and do not always adequately reflect public health recommendations, scientific facts, and constitutional principles. For instance, Proposition 96 requires the magistrate or court having jurisdiction of the criminal complaint or petition to review the request for testing. By contrast Penal Code Section 7511 requires the chief medical officer to do so.
Proposition 96 requires an order to test to issue upon a finding that probable cause exists to believe that a possible transfer of blood, saliva, semen, or other bodily fluids" occurred by "biting, scratching, spitting, or transferring blood or other bodily fluids on, upon, or through the skin or membranes...." CAL HEALTH Section SAFETY CODE Section 199.97 (West Supp. 1990). Penal Code Section 1524.1 allows an order to issue upon a finding that "there is probable cause to believe that the accused committed the offense. . ." and that "blood, semen, or any other body fluid identified by the State Department of Health Services in appropriate regulations as capable of transmitting . . . [HIV] has been transferred...." CAL PENAL CODE Section 1524.1(b)(1) (West Supp. 1990). Penal Code Section 7511(b)(1) requires "an exchange of body fluids . . . which could have resulted in AIDS infection, based on the latest written guidelines and standards established by the federal Centers for Disease Control and the State Department of Health Services," and permits an order to issue upon the following factors being taken "into account": whether transmission "could have resulted in AIDS infection;" whether the person could be categorized as a "possible AIDS victim;" and whether another's health "may have been endangered." Id. at Section 7511b(1), (2), Section (3).
66. LA MUN CODE Section 45.80-45.93 (1985).
67. The Presidential AIDS Commission implicitly acknowledged Los Angeles's pioneering role when it noted the central importance of anti-discrimination efforts in limiting the spread of AIDS. See supra note 39. See also Schulman, supra note 30, at 1119-30, 1133-34.
68. Institutions with staff who may encounter blood in the workplace may find the AIDS Education for Emergency Workers Project of the American Red Cross, Sacramento Chapter, to be a useful resource center for training, educational materials and OSHA compliance strategies for ambulance service, corrections, tire service, and law enforcement personnel. The following materials may also prove particularly useful: CALIF FIREFIGHTERS FDTN AND AMERICAN RED CROSS, SACTO. CHPTR. PUBLIC SAFETY WORKERS AND AIDS: A GUIDEBOOK FOR AMBULANCE SERVICE. Corrections. FIRE SERVICE AND LAW ENFORCEMENT PERSONNEL (May 1989), Ayres, AIDS/HIV Carriers: An Organizational Response, FBI LAW ENFORCEMENT BULLETIN (June 1989), 613; GUIDELINES, supra note 45; CURRICULUM GUIDE, supra note 53; CORRECTIONAL FACILITIES, supra note 53, UPDATE, supra note 53; US DEPT OF JUSTICE, AIDS BULLETIN LEGAL ISSUES AFFECTING OFFENDERS AND STAFF (May 1989).
69. LOS ANGELES CITY COUNCIL REPORT OF THE PUBLIC HEALTH. HUMAN RESOURCES AND SENIOR CITIZENS COMMITTEE (Council File No. 85-0869, at 2 (Oct 13, 1987)) [hereinafter CITY COUNCIL].
70. Id. at 1.
71. CITY OF LOS ANGELES, DEPARTMENT L AIDS BRIEFING SESSION (Dec. 15, 1987 and Feb. 9, 1988) [hereinafter AIDS Briefing]. See, also CITY COUNCIL, supra note 69, at 1.
72. AIDS BRIEFING, supra note 71.
Copyright (c) 1990 - St. Louis University Public Law Review. Reproduced with permission.
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