Unit III. Clinical Management

What the Law Says About Discrimination

We now have strong laws to protect persons with AIDS from illegal discrimination. (The laws are somewhat different in each state.) The law tries to halt many kinds of illegal treatment, but people don't always agree on how to enforce these laws. You first need to understand the different ways these laws can be interpreted, so that you can decide what your best course of action will be.

Laws are like tools: how much they help you depends on how well you use them. Sometimes, just sharing your understanding of the law with the right people at the right time can solve your problems, and save everyone time, money, and grief. To do this, you will need to learn a few legal terms. You will need to use them when you try to explain what you see happening, and why you think it is illegal.

Legal and Ethical Aspects of working with HIV infected people

Common Forms of Discrimination

 

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Legal Terms

Action or Inaction, Harm or Injury:

These are the standard words lawyers use when talking about discrimination. They use them when they talk about the three things that prove a charge of discrimination:

It must be proved that someone, through an ACTION or INACTION, is being discriminatory. For example, you were fired, or you were denied a service. (If you are afraid that something is about to happen, though, you will not be able to get the law on your side: the law cannot step in until the harm is done. This is called potential action).

The discrimination must have resulted in some kind of HARM or INJURY to you. (Understand that this is not a violation of the law just to dislike someone unless they actually cause you some harm or injury);

 

Here are some examples:

No one will work near me anymore (inaction) so I'm being segregated (harm, injury)

People are harassing me (action) so I'm subjected to abuse (harm or injury)

I asked for an accommodation, but got no response (inaction) so I was denied an accommodation (injury)

If I tell my boss about my diagnosis, I don't think he will keep it confidential (potential action) so I'm afraid my privacy rights will be violated (potential injury)

To say it one more time: it must be proved that there is a connection between the person's HIV status and the harm done. It is often easy to determine ACTION/INACTION and HARM/INJURY. However, the connection between that and HIV status may be hard to prove. To make a good case, a person has to prove that they were hurt because someone thinks or knows they have AIDS.

 

Disparate or Unequal Treatment:

This means a person is treated differently or worse than others because they have AIDS (or because people think they have AIDS, ARC, or HIV infection). For example, a person is fired from a job and several people heard the boss say it was because they have AIDS. To prove a case of unequal treatment, the witnesses must be willing to repeat what they have heard.

Disparate or Unequal Impact (Unfair Results or Unequal Effect):

This means that the result of a certain policy is unfair to people who have AIDS, even if the policy attempts to treat everyone equally. An example of this: a sick leave policy that penalizes all people for taking a certain amount of earned sick time unless they have a doctor's letter stating the nature of the illness. Because medical information about AIDS and other disabilities is confidential, people do not have to tell their employer that they have AIDS: therefore, this policy could have the result of a PWA (person with AIDS) being afraid to ask for sick leave; because, if they did, they would have to reveal their medical condition.

Disparate impact is generally not caused by vindictiveness, and can usually be resolved through discussion.

Separate Treatment (Segregation):

SEPARATE TREATMENT is illegal, unless it is the only way to provide the service a person with AIDS is seeking. An example of separate treatment would be: you go to your dentist and you tell him you have AIDS: if he then says he will only treat you after regular office hours, you are being discriminated against. Or, as an example, if a salon owner moves your work station away from other employees because he thinks or knows you have AIDS, you are being discriminated against.

Reasonable Accommodation and Undue Hardship:

The purpose of REASONABLE ACCOMMODATION is to change something so that you can do your job or benefit from a program or service, even if you have a disability. The accommodation must be related to your physical limitations and it must be related to the job or activity.

The person that is HIV positive or has AIDS should request the accommodation or, it must be something you are offered and want to accept. If an employer or housing manager gives or provides an accommodation that you do not want or need, that in itself could be a form of discrimination.

From the PWA point of view, the accommodation must help them to overcome the limitation of their disability. From your employer's point of view, the accommodation must enable you to do your job. Failure to provide the accommodation is a violation of law, unless the other side can prove UNDUE HARDSHIP. This means the employer must be able to prove that providing the accommodation will be costly or too difficult.

Employers may request proof of your disability before they provide you with an accommodation, but they can't legally share that information with anyone if you insist on confidentiality. They are allowed to inform those people who need to know that you will receive the accommodation, but they are not allowed to speak about your health status with anyone else, unless you give them written permission. If you decide to ask for confidentiality, it is very important that you put your request in writing and keep a copy of the request for yourself.

A side note: sometimes a reasonable accommodation means one can ask for special treatment. For example, if a person needs to go to a clinic where an AIDS drug study is taking place, and the clinic is only open from 9 to 5, then they must be allowed the time off from work in order to maintain both their job and their health. The law does not consider this 'special treatment' - it considers it a reasonable accommodation. Unless the employer can prove that it would be an undue hardship for him/her to grant this (because they cannot arrange to hire replacement help, or the job cannot be done by the individual on 'flex time', for example) the PWA can count on getting such an accommodation.

Examples of Reasonable Accommodation:

 

HIV/AIDS LEGISLATIVE OVERVIEW

Important legislation modifying existing state laws on HIV/AIDS was passed during the 1998 Legislative Session. The Bureau of HIV/AIDS has developed a plan to implement these changes. Major actions will include training, as well as revisions to the HIV/AIDS administrative rules and the Model Protocol on Counseling and Testing. To clarify these changes and to facilitate compliance, the following overview is provided:

SB 714 (Omnibus AIDS Act)

Implementation Date - July 1, 1998

Counseling and testing requirements were revised as follows:

Counseling and Testing Requirements for the Private Sector - The new legislation streamlines HIV testing requirements for the private sector to encourage the offering of HIV testing. Informed consent is still required and must include information on HIV infection reporting and on the availability of anonymous testing; however, pretest counseling requirements are eliminated, including the requirement that a return visit be scheduled with the test subject for the purpose of disclosing HIV test results. Posttest counseling requirements have been revised to leave specific notification procedures to the individual medical practice. Nothing in the new language prohibits the release of test results by telephone or by mail; however, strict confidentiality provisions and penalties for violations of these provisions require that health care providers exercise extreme care in notifying test subjects of their results.

Counseling and Testing Requirements for County Health Departments and Registered HIV Testing Sites - Counseling and testing in the county health departments and at registered testing sites will remain the same.

The Model Protocol for Counseling and Testing must be revised to include criteria for evaluating a patient's risk for HIV and for offering HIV testing, on a voluntary basis, as a routine part of primary health care or admission to a health care facility. The department must ensure that the revised protocol is available to health care providers.

 

 

 


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