In a ruling that clarifies a murky legal situation for hospitals and other healthcare providers, the U.S. Supreme Court late last month extended the protections in the Americans with Disability Act to people who test positive for HIV, even if they have not yet developed AIDS-related symptoms.
Hospital staff, of course, are among the workers most likely to be infected on the job through needle pricks and other contact with infected blood or bodily fluids, even though hospitals typically follow the universal precautions developed by the Centers for Disease Control and Prevention.
Workers with AIDS were previously protected by the ADA, which bans all forms of discrimination against the disabled. But the new ruling could impose extra administrative costs on hospitals as employers of HIV-infected workers.
Although the vote was a narrow, 5-4 victory for the argument that HIV infection automatically constitutes a disability as defined by the ADA, attorneys contacted by MODERN HEALTHCARE said the decision clarifies a muddy situation.
"They (the high court) pretty much have closed the door on any argument," said Doug Dexter, a disability-discrimination attorney at O'Melveny & Myers in San Francisco.
"For unsophisticated employers-hospitals that were hedging their bets-this certainly makes things clear," echoed Ellen Dwyer, a labor attorney at Crowell & Moring in Washington.
However, the Supreme Court left it to the lower court to decide on the specific merits of the case, Bragdon vs. Abbott.
The case involved an HIV-positive patient who sued her dentist for insisting that her cavity be filled in a hospital instead of as an outpatient procedure. Several lower courts found for the plaintiff, but the dentist, Randon Bragdon of Bangor, Maine, appealed to the U.S. Supreme Court.
In states like California, where state law already vigorously protects HIV-infected individuals, providers shouldn't notice much impact from the ruling. Those states already have extended full protection to workers who are HIV-positive. But in states with less-protective laws and less-liberal courts, hospitals may need to make new accommodations for workers with HIV.
One complication is that employers aren't allowed to ask employees about their HIV-status.
"Where AIDS care is less than adequate, their concern for employees with AIDS may not be as high," noted Gene O'Connell, executive administrator of San Francisco General Hospital, a nationally known center for AIDS treatment.
Because of homophobia and disdain for illicit drug use, "there may not be a lot of sensitivity in some parts of the country," she said.
Still, some lawyers contend that only "very foolish" employers would have refused to treat HIV-infected employees as members of a protected class before the Supreme Court's ruling.
In a majority opinion written by Justice Anthony Kennedy, the high court ruled June 25 that HIV-infected individuals are covered by ADA protections. But it referred the Bragdon case to a lower court for reconsideration of specific legal merits. The case is believed to be the first in which the Supreme Court has ruled on an AIDS-related issue.
The four dissenting justices, led by Chief Justice William Rehnquist, argued that decisions about whether asymptomatic HIV-positive individuals are covered by the ADA should be made case-by-case.
Hospitals probably will be affected by the ruling more than any other category of employers and may see more disability-related lawsuits based on HIV status, according to Marta Fernandez, a labor and employment lawyer at Jeffer, Mangels, Butler & Marmaro in Los Angeles.
In addition, the ruling "says to employers that we're going to make you examine job descriptions and make any accommodations that can be made," Fernandez said.
Attorneys familiar with the case say hospitals will need to make any reasonable accommodations to meet the needs of asymptomatic HIV-infected employees.
Examples could include:
Transferring workers to jobs that pose a smaller risk of transmission of the disease.
Providing frequent breaks-to the extent feasible under the work schedule-to allow affected workers to take necessary and time-sensitive doses of "AIDS-cocktail" medications.
Providing special equipment or facilities to lower the risk of transmission.
It's too early to assess the potential costs of such accommodations, healthcare labor experts agreed.
Officials at the American Hospital Association downplayed the importance of the ruling.
"I don't see this as having a significant impact. We're well along on dealing with this issue," said Mary Grealy, senior Washington counsel for the AHA.
Association officials said hospitals already safely deal with HIV-positive employees by following CDC guidelines.
The same is true in California, say officials of the California Healthcare Association, which represents the state's hospitals.
Tom Luevano, vice president of human resources for the association, said he doesn't expect to see a large increase in lawsuits because of the ruling, although there could be an incremental jump in litigation.
"We're pretty savvy employers, and we know these issues," he said of the state's hospitals. "We had people adding (HIV-infected workers) to protected classes the next day."
In any case, some employers actively endorse the new ruling.
"We support both the letter and the spirit of the ADA regulations that protect people with HIV/AIDS from discrimination," said Martin Brotman, M.D., president and chief executive officer of California Pacific Medical Center in San Francisco.
The 3,200-employee hospital is part of Sacramento-based Sutter Health hospital system. Because of confidentiality requirements, officials say they have no idea how many employees may be infected with HIV.
California Pacific, which has considerable experience in dealing with employees and patients with AIDS and HIV, formed an employee task force in February to study the hospital's resources and capabilities in this area, Brotman said.
The medical center is exploring "creating a supportive, flexible work environment and communicating the options available," he said.
Because an employee's HIV/AIDS status is highly confidential, the hospital intends to base its planning on demographic trends in San Francisco rather than try to identify how many of its employees are affected.
"You can't ask these kinds of questions," noted the California Healthcare Association's Luevano. But even so, he said, some employers may feel relief that the HIV-disability issue has been clarified.
"I'm almost relieved to have the high court make a decision about HIV and employees," Luevano said. "It was always a gray area for us."