Your Rights - HIV Issues

---

Also available as a printable PDF document

Vermont Anti-Discrimination Law

Discrimination Based on HIV Status

Does Vermont have laws protecting people with HIV from discrimination?

Who is protected under these anti-discrimination laws?

• People with AIDS or who are HIV-positive, even if they are asymptomatic and have no outward or manifest signs of illness.
• People who have a record of or who are regarded or perceived as having HIV.
• Under federal law, but not Vermont 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 a person with HIV.

Employment Discrimination

Adverse Treatment

What laws protect people with HIV from discrimination in employment?

More generally, people with HIV are protected under the federal Americans with Disabilities Act (ADA) and the Vermont Fair Employment Practices law, both of which prohibit discrimination on the basis of a person’s disability. For purposes of these laws, the word “disability” refers to a wide range of health conditions. The ADA covers employers with 15 or more employees. The Vermont law covers employers with one or more persons performing services in the state.²

¹Title 21, Section 495
²Title 21, Section 495d §(1)

What do these anti-discrimination laws prohibit?

The focus here is whether a person with AIDS or HIV was treated differently than other applicants or employees in similar situations.

The following are 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.
• 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 cannot refuse to hire a person because it will increase health or workers’ compensation insurance premiums.

Reasonable Accomodation

What does it mean that an employer may have to provide a “reasonable accommodation” for an employee with a disability?

Persons with disabilities, such as HIV/AIDS, may experience health-related problems that 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 a disability, such as HIV or AIDS, to perform the job duties. This is known as a “reasonable accommodation.”

Examples of reasonable accommodations include:

• Modifying or changing job tasks or 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.

How can a person get a reasonable accommodation?

It is, with rare exception, the employee’s responsibility to initiate the request for an accommodation. In addition, an employer may request that an employee provide some information about the nature of the disability. Employees with concerns about disclosing HIV/AIDS status to a supervisor should contact the AIDS Law Project’s Legal InfoLine in order to strategize about ways to address any such requests.

There is no fixed set of accommodations that an employee may request. The nature of a requested accommodation will depend on the particular needs of an individual employee’s circumstances.

Does an employer have to grant a request for a reasonable accommodation?

An employer is not obligated to grant each and every request for an accommodation. An employer does not have to grant a reasonable accommodation that will create an “undue burden” (i.e., significant difficulty or expense for the employer’s operation). In addition, the employer does not have to provide a reasonable accommodation if the employee cannot perform the job function even with the reasonable accommodation.

When is a “reasonable accommodation” for an employee an “undue burden” for an employer?

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 constraints
• The costs of implementing the requested accommodation
• How the accommodation affects or disrupts the employer’s business

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.

Employer Health Inquiries

What may an employer ask about an employee’s health?

• Have you ever been hospitalized or under the care of a physician?
• Have you ever been on workers’ compensation or received disability benefits?
• What medications do you take?

After employment has begun, an employer may only require a physical examination if it is job-related and consistent with business necessity.

Health Care Workers

How have the courts addressed fears that health care employees who perform invasive procedures, such as surgeons, will transmit HIV to patients?

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 or safety of others.” To determine whether an employee poses a “direct threat,” a court analyzes:

• 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 …”³

³Doe v. University of Maryland Medical System Corporation, United States Court of Appeals for the Fourth Circuit, April 3, 1995.

Assessing Discrimination

How does an employee determine whether he or she has experienced discrimination?

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.”" What they cannot be fired for is 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 or without reasonable accommodation; and
   • 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.
3. If your employer knows that you have HIV or AIDS, identify exactly who knows, how they know, and when they found out. If you have not told your employer, is there any other way the employer would know or suspect your HIV status?
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?
5. Do you have any difficulty fulfilling the duties of your job because of any HIV-­related health or medical issue? Does your condition prevent full-time work, or require time off for medical appointments, lighter duties or a less stressful position? You might want to try brainstorming to create a reasonable accommodation that you can propose to your employer. Here are some points to consider:
   • How does the company operate and how would the accommodation work in practice?
   • Put yourself in your 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?

Public Accomodations

Do Vermont laws protect against discrimination by health care providers, businesses, and other public places?

Yes. Under Vermont law⁴ 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.

⁴Title 9, Section 4502

Does Vermont have public accommodation laws that specifically pertain to schools?

Yes. In addition to the general prohibition against discrimination in places of public accommodation, Vermont has a specific law that prohibits a school district or educational institution from discriminating against any applicant or student based on HIV status.⁵ In addition, school districts and educational institutions may not request or require that an applicant or student take an HIV test. A student or applicant who is harmed by a violation of this statute may bring a lawsuit in Superior Court for injunctive relief and damages.

⁵Title 18, Section 1127

Does Vermont have public accommodations laws that specifically pertain to health care?

Yes. Vermont also has a specific law prohibiting discrimination by health care providers or facilities against people with HIV. In addition, health care providers and facilities may not require an HIV test as a “condition for receiving unrelated treatment or service.”⁶ An individual may bring a lawsuit in Superior Court for injunctive relief and damages based on violations of this statute.

⁶Title 18, Section 1128

Is discrimination by health care professionals against people with HIV still a problem?

Believe it or not, people with HIV still face discrimination by hospitals, doctors, dentists, and other health care providers. This discrimination can take the form of an outright refusal to provide medical services or an illegal referral because of a patient’s HIV status.

What types of arguments are made by doctors who discriminate against people with HIV and are they legitimate?

Doctors typically try to justify discrimination against people with HIV with one of two arguments:

1. “Treating People with HIV is Dangerous” (Some doctors refuse to treat people with HIV based on an irrational fear of HIV transmission); and
2. “Treating People with HIV Requires Special Expertise” (Some doctors refer patients to other medical providers based on an inaccurate belief that general practitioners are not qualified to provide care to patients with HIV).

How have courts and medical experts responded to these arguments?

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.⁷

   In addition to the legal perspective, both the American Medical Association and the American Dental Association, and many other professional health care organizations, have issued policies that it is unethical to refuse treatment to a person with HIV.

2. “Treating People with HIV Requires Special Expertise”

   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, a federal trial court rejected a dentist’s claim that patients with HIV require a specialist for routine dental care.⁸ 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.

⁷524 U.S. 624 (1998)
⁸898 F. Supp. 1157 (E.D. La 1995)

What are the specific provisions of the ADA that prohibit discrimination by health care providers?

Under Title III of the ADA⁹, it is illegal for a health care provider to:

1. 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.
2. Establish “eligibility criteria” for the privilege of receiving medical services, which tend to screen out patients who have tested positive for HIV.
3. Provide “different or separate” services to patients who are HIV-positive or fail to provide services to patients in the “most integrated setting.”
4. 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.

⁹Title 42 of the United States Code, Sections 12181-12188

What specific health care practices constitute illegal discrimination against people with HIV?

Applying the specific provisions of the ADA above to the practice of health care, the following practices are illegal:

• 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 even be an ADA violation to 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.

How does Vermont law compare with the ADA?

Vermont law will be interpreted in a similar manner to the ADA.

Housing

What Vermont laws prohibit discrimination in housing?

It is illegal under both Vermont law,¹⁰ 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.

¹⁰Title 9, Section 4503

Are there any exceptions to these laws?

An exception exists under Vermont law for rentals in buildings that consist of three or fewer units, where the owner or a member of the owner’s immediate family resides in one of the units.¹¹ In addition, the 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.

¹¹Title 9, Section 4504

HIV Testing & Privacy

HIV Testing

What laws in Vermont govern informed consent for HIV testing?

Vermont does not have a statute mandating specific and written informed consent for an HIV test. An HIV test may therefore be taken based on a general medical consent. Vermont, however, does have a specific law requiring that insurers who test applicants for HIV follow specific procedures, including obtaining HIV-specific written consent.

What procedures must an insurer follow when testing an applicant for HIV?

An insurer in Vermont cannot require that a person reveal having taken HIV tests in the past. The insurer, however, can request that an applicant or insured take an HIV test. In addition to obtaining HIV-specific written informed consent for an HIV test, the insurer must provide specific information to every applicant. This information includes:

1. An explanation of the HIV test, and its relationship to AIDS;
2. The limitations on the accuracy and meaning of the test results, and the importance of seeking counseling about the test results;
3. The insurer’s purpose in seeking the test;
4. An explanation that the individual is free to consult with a personal physician or counselor about HIV testing and may obtain an anonymous test before being tested by the insurer;
5. An explanation that the person has the choice to receive the test results directly or through another person designated in writing; and
6. A statement that the insurer may disclose the test results to others -- such as its medical personnel -- in order to make underwriting decisions.

The information required to be provided to the applicant or insured must be read aloud to the insured as well as provided in writing.¹²

¹²Title 8, Section 4724 (20)

Are there circumstances under which Vermont law permits HIV testing, even against a person’s wishes?

In addition, the law provides that a defendant who has been charged with a sexual act offense, but has not yet been convicted, may offer to be tested for HIV and other sexually transmitted diseases. The test result may not be used as evidence at the defendant’s criminal trial, but if the defendant is ultimately convicted, the court may consider the offer for testing as a mitigating factor.¹⁴

¹³Title 13, Section 3256. The term sexual act for this law means: 1) contact between penis and vulva, mouth and penis, mouth and vulva, or any intrusion of a body part or object into the genital or anal opening of another; and 2) which creates a risk of transmission of HIV as determined by the U.S. Centers for Disease Control.
¹⁴Title 13, Section 3256

Privacy

What laws in Vermont protect the privacy of medical information, such as HIV?

Under general common law principles, physicians, health care providers and institutions cannot disclose private medical information to others without the patient’s consent.

Does a person with HIV have a 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 to the government’s legitimate reasons for a policy or practice that results in disclosure.

Are there circumstances under which Vermont law permits the disclosure of HIV status, even against a person’s wishes?

Yes. Vermont law provides for disclosure of HIV status under specifically prescribed circumstances.

1. Court Ordered Disclosure

   Under Vermont law, a court may order that an individual disclose HIV-related testing or counseling information if it finds that the person seeking the information has “demonstrated a compelling need for it that cannot be accommodated by other means.”¹⁵ In making such a determination, the court weighs the need for the disclosure of a person’s HIV status against the privacy interest at stake. In recognition of the importance of maintaining the privacy of HIV status, the Vermont Legislature has also directed courts in such cases to consider whether the public interest may be disserved by a disclosure of HIV status that deters future testing and may lead to discrimination.

   The law contains numerous procedural safeguards, including a requirement that the name of the test subject not be disclosed, the right of the test subject to participate in the court hearing, and a requirement that any court order specify who may have access to the HIV-related information and prohibitions on future disclosure.

2. HIV Reporting for Epidemiological Tracking

   In order to assess trends in the spread of HIV and develop effective prevention strategies, Vermont law requires that a broad range of health care providers, hospitals, and managed care organizations report a diagnosis of HIV infection to the department of health. Importantly, the name of the patient is not used. Rather, the report of HIV infection is made using an anonymous code.¹⁶ A diagnosis of AIDS, however, is reportable to the department of health by name of patient. All such information is maintained as privileged and confidential by the department.

¹⁵Title 12, Section 1705
¹⁶Title 18, Section 1001

Other HIV-related Laws

HIV Services for Survivors of Sexual Assault

What services does Vermont law require be provided to survivors of sexual assault crimes?

Vermont law requires that, upon request of the victim of a crime involving a sexual act¹⁷, the state must provide the victim with:

1. counseling regarding HIV;
2. testing for HIV and other sexually transmitted diseases;
3. counseling by a medically trained professional on the accuracy of the testing, and the risk of HIV and other sexually transmitted diseases as a result of the crime;
4. antiviral medication prophylaxis treatment, crisis counseling, and support services; and
5. monthly follow-up testing for six months.

¹⁷See footnote 13 for definition of "sexual act".

Needle Exchange Programs

Do Vermont laws provide for access to clean needles for injection drug users to prevent HIV transmission?

Yes. In light of the clear scientific evidence that programs offering access to clean needles:

1. decrease new HIV and hepatitis B and C infections; and
2. increase the number of injection drug users referred to substance abuse treatment,

Under this law, an AIDS service organization, substance abuse provider, or licensed health care provider or facility, may apply to the department of health to operate a needle exchange program. Importantly, a person who possesses needles obtained through such a program is not in violation of the laws making it a crime to possess drug paraphernalia.

¹⁸Title 18, Sections 4475, 4476 and 4478

How does a person show that he or she lawfully obtained needles through an authorized exchange program?

Needle exchange programs provide identification cards for consumers who are enrolled in the program. Regulations of the department of health mandate that the cards shall not identify the consumer by name, but rather use a confidential identifier system.¹⁹

¹⁹See Vermont Department of Health, Operating Guidelines for Organized Community-Based Needle Exchange Programs, September 1999