Managing HIV-positive Health Care Workers

Supreme Court to rule on application of ADA

Will verdict be clear-cut?

A review of case law involving the job status of HIV-positive health care workers has found 11 cases, four of which relied on the 1991 federal guidelines for managing infected workers. The U.S. Supreme Court will decide soon whether those workers are protected against discrimination under the Americans With Disabilities Act, but at least one legal expert doesn't think the court will establish any clear guidelines.

Lawyers for the Centers for Disease Control and Prevention have found 11 court cases dealing directly with HIV-positive health care workers and their job status. They found no cases involving hepatitis-C infected health care workers, says CDC attorney Dan Riedford, JD.

In the four most recent cases, the CDC guidelines were mentioned, and three of them relied on the guidelines in making a decision. The formation of expert review panels as suggested by the guidelines was implemented in only one of the cases. Only two of the cases involved court-approved restrictions of a health care worker other than a surgeon or surgical technician. In one case a dental student was "disenrolled" from dental school. In the other case a licensed registered nurse was removed from his job even though the most invasive procedure he performed was inserting IVs.

As an example of a trend toward relying on CDC guidelines, Riedford mentions the case of an HIV-positive OB/GYN whose job offer was withdrawn after she informed her employer of her status. In ruling in favor of the employer, the court found that the CDC guidelines "created a presumption that the doctor was qualified to perform most medical procedures," according to a CDC document.

In a defamation case involving an HIV-positive heart transplant surgeon, the court noted that the surgeon had routinely followed the CDC guidelines, and therefore posed no threat to his patients. After a colleague wrote to the surgeon's patients encouraging them to seek other medical treatment because of his HIV status, the surgeon filed suit for libel and the court ruled in his favor.

In two sets of related cases, the courts have ruled on the issue of whether people infected with HIV or HBV are considered disabled under current law, particularly the Americans With Disabilities Act. For employment cases outside health care, courts have ruled that HIV-positive and HBV-positive people qualify as disabled, Riedford notes. However, their disability doesn't disqualify them from certain jobs, such as teaching or banking.

In February, a California court of appeals heard arguments in a case in which an HIV-positive banker lost his job when new management did not permit him the accommodations he needed to perform his job.

"This case and a number of others across the country will have critical impact on the lives of more and more people with HIV and AIDS," says Myron Quon, JD, staff attorney for the Lambda Legal Defense and Education Fund. "Laws that prohibit discrimination based on disability aim to allow people to keep their jobs and contribute to their maximum capability."

What constitutes disability for HIV-positive patients will be the main issue in the first HIV-related case to reach the Supreme Court. The case began when an HIV-positive patient, Sidney Abbott, sued a Maine doctor for refusing to treat her at his office. (See AIDS Alert, April 1996, p. 43.) In ruling against the patient, the U.S. Court of Appeals cited Abbott's claim that her infection prohibited her from having children - a disability under ADA in that it was a significant limitation on a "major life activity."

What the Supreme Court ultimately must decide is whether asymptomatic HIV is in itself considered a disability under ADA - a claim that could be more difficult to make universally now that combination therapy has allowed many patients to return to work.

Indeed, Lawrence Gostin, JD, professor of law at Georgetown University Law Center and an advisor to the CDC, recently told CDC officials that he didn't expect the court to make a blanket ruling about asymptomatic people.

Ruling may call for 'individual determination'

"I am not optimistic that the court will find unequivocally in the way I think it ought to," he said. "I feel the court will say it is an individual determination about whether an asymptomatic person has a major life activity that is impaired, and with the advent of combination therapies it is becoming clearer that the trend is not having major life activities impaired."

If the Supreme Court upholds the appellate court's decision, Gostin says, more HIV-positive people will lose their protections.

In a Feb. 11 meeting with CDC officials, Gostin said he believes health care workers "should continue to practice if they can do so safely, and should not disclose their serostatus to patients. If the health status of the health care worker impairs performance of the procedures, invasive procedures especially, then disclosure is not enough. The health care worker should be removed. If health status does not impair the health care worker's performance, then there is no need to disclose serostatus."

So far, the Medical Expertise Retention Program of the Gay and Lesbian Medical Association has received reports of discrimination from 149 health care workers, 51 of whom were fired or reassigned once their HIV status was disclosed, says program director Naphtali Offen. Of those 51, more than half performed little or no surgery, he said. A total of 16 of the health care workers stated that they were infected on the job. Offen also reported that 14 medical students were denied rotations or dismissed from their programs because of their infection.