The Wall Street Journal
Copyright (c) 1994, Dow Jones & Co., Inc.
Wednesday, March 23, 1994
Regulatory Chokehold: Disabilities Law, Health Hazard
By James Bovard
The movie "Philadelphia," portraying a law firm's discrimination
against an AIDS-infected lawyer, won two Academy Awards Monday
night. While the movie is generating sympathy for people with AIDS,
little attention is being paid to the people whose lives are being
endangered by federal policies that increasingly prevent companies
from protecting employees or customers from contagious fatal
diseases. Few people realize how expansive the Americans With
Disabilities Act is, and how it can threaten their own health.
The Supreme Court laid the groundwork for a broad protection of
the rights of contagious people in a 1987 decision that a school
board wrongfully fired a teacher with tuberculosis. Under the ADA,
passed in 1990, "any physiological disorder or condition which
substantially limits one of a person's 'major life activities"' can
be classified as a handicap that employers are prohibited from
discriminating against. Since contagious diseases are physiological
disorders -- voila! -- discriminating against people with contagious
disease can be a federal crime.
Employers are now required to hire people with contagious
diseases unless they can prove that the person poses a large risk to
other workers or their customers. The Equal Employment Opportunity
Commission, in its implementing regulations for the ADA, announced:
"Determining whether an individual poses a significant risk of
substantial harm to others must be made on a case by case basis."
"Significant risk" was defined in congressional reports authorizing
the law as a high probability of substantial harm.
Restaurants are now obliged to give the benefit of the doubt to
potentially contagious job applicants. James Coleman, an attorney
for the National Council of Chain Restaurants, observed in 1992,
"What we were told in no uncertain terms was 'We [Congress] are
going to use the restaurant industry as a vehicle for forcing a
change in public attitude with respect to AIDS. If it costs you
money, too bad."'
It is extremely unlikely that someone could contract AIDS as a
result of eating a meal prepared by an AIDS-infected person, but
such individuals often are hit by other illnesses -- such as
tuberculosis -- that are contagious. A Farmington, Conn., restaurant
was sued by the state Commission on Human Rights and Opportunities
after the restaurant refused to rehire an AIDS-infected waiter who
had taken a leave after coming down with double pneumonia. (The
Hartford Courant noted that the waiter "started losing weight and
became sluggish and weak. He left food under the warmers too long,
and his hands shook so much that he couldn't carry cocktail trays.")
The presumptions created in the ADA can turn every decision about
the job and work assignments of a contagious individual into a court
battle. Civil-rights policy concerning contagious diseases is
influencing firefighting. In a path-breaking case last December,
federal judge Joyce Hens Green ruled that the District of Columbia
fire department violated an infectious firefighter's civil rights
because he was specifically prohibited from doing mouth-to-mouth
resuscitation. But the firefighter had hepatitis B, which infects
300,000 people and kills 7,000 people a year.
The biggest impact of the new discrimination-contagion philosophy
is on health care. The federal Department of Health and Human
Services penalized a Westchester County, N.Y., hospital in 1992
because it prevented an HIV-positive pharmacist from preparing
intravenous solutions, even though the hospital did offer the
pharmacist another position where there was far less danger of
transmitting the disease.
Hospital, the journal of the American Hospital Association, noted
that the Westchester hospital "justified its stance by noting its
large number of very ill patients and that pharmacists often stick
themselves accidentally and must break glass vials in order to
prepare IV solutions. In a worst-case scenario . . . pharmacists
could stick themselves with a fine-gauge needle and be unaware of
it. That needle would then be inserted in a bag with solutions,
contaminate the solution, and then infect a patient." But federal
officials ruled that the hospital violated the rights of the
infectious pharmacist. The hospital was forced to pay him $330,000
for, among other things, the "emotional damage" it had inflicted on
Federal regulations are resulting in a cloak of secrecy being
imposed on what may be life-or-death information to patients. The
ADA gave health care workers the right to continue performing
invasive surgery without disclosing to patients that there is a risk
that they could contract AIDS from the health care provider.
There are roughly 7,000 HIV-positive physicians in the U.S. A
1992 Centers for Disease Control study observed that, under one set
of assumptions, "the estimated probability that [an HIV-infected]
surgeon will transmit HIV at least once during the rest of his/her
career is 8.1%."
Even if a doctor with HIV lies to his patients and claims not to
be infectious, he is still entitled to full protection under the
ADA. Philip Benson, a Minneapolis physician, continued delivering
babies and doing invasive genital and rectal examinations for nearly
a year after he came down with AIDS; the Minnesota Board of Medical
Examiners in September 1990 permitted him to continue practicing
even after he had open sores on his hands and arms as long as he
wore double gloves. Dr. Benson reportedly lied to his patients when
they asked questions about his sores and his sharp weight loss, and
also allegedly failed to wear gloves during some examinations.
While many HIV-infected surgeons voluntarily cease practicing,
others are not so inclined. In late 1992, an AIDS-infected
orthopedic surgeon sued Mercy Catholic Medical Center of
Philadelphia for revoking his hospital privileges. The hospital
offered to allow the surgeon to continue practicing if his patients
signed consent forms stating that they had been informed of the
doctor's HIV status. The surgeon sued. American Medical News noted,
"Advocates for people with HIV insist that requiring notification
[of patients] is tantamount to revoking [hospital] privileges." The
suit is still pending.
The failure of policies that indulge infectious surgeons was made
stark in a recent investigation of a UCLA surgeon who spread
hepatitis B to 18 patients undergoing heart surgery in 1991-92.
Amazingly, the hospital had tested the surgeon, discovered he was
infected, and yet still permitted him to continue operating without
warning patients of the additional deadly risks they faced. The
hepatitis was apparently spread to patients through tiny holes in
surgical gloves. The New York Times noted yesterday that "the
hospital's decision to allow the surgeon to keep on operating even
after he was found to be infected . . . is in compliance with
The UCLA case makes a mockery of the CDC's universal precautions
-- which, if followed, supposedly protect patients from infected
doctors and dentists. Yet, studies in recent years have found that
as many as 47% of gloves suffer from defects, punctures or leaks
The ADA is also restricting how health care workers may protect
themselves from contagious patients. (The CDC has identified 120
cases of documented or possible occupational transmission of
AIDS/HIV to health care workers, and hepatitis B kills over 200
health care workers a year.) The official news magazine of the
American Dental Association warned dentists last November that
"dentists should be . . . aware that they could be charged with
discrimination for using 'extra precaution"' while treating HIV
Unfortunately, federal policy toward contagious diseases seems
increasingly simply a question of clout in Washington. In 1990, the
International Association of Fire Fighters -- a politically powerful
union -- succeeded in persuading Congress to include a provision in
a law requiring that emergency response employees be notified when
they had been exposed to airborne infectious disease.
It is peculiar to see how far federal law goes to protect
firefighters, infected or otherwise. Firefighters must be notified
when they have been exposed to the plague -- even though
"person-to-person transmission of plague has not been documented
since 1924," as a Federal Register notice observed Monday.
Firefighters and emergency medical technicians have a federal right
to be notified any time they are in the same vehicle with a person
with TB -- yet hospital patients have no right to be notified when
their surgeon is HIV positive, despite the CDC study showing that
there could be an 8% chance that an HIV-infected surgeon will
effectively kill one of his patients by spreading HIV.
Federal policy makers act as if it is more important to minimize
prejudice against people with infectious diseases than to minimize
the spread of the diseases themselves. The Americans with
Disabilities Act is creating a "civil right" that is the antithesis
of individual rights -- of freedom of contract -- and of the right
of informed consent. Maybe someday someone will make a movie about
Mr. Bovard writes often on public policy.
The Wall Street Journal
Copyright (c) 1994, Dow Jones & Co., Inc.
Friday, April 29, 1994
Letters to the Editor: HIV, the ADA and Needless Hysteria
In regard to James Bovard's March 23 editorial-page piece
"Disabilities Law, Health Hazard": Mr. Bovard makes the case that
the Americans with Disability Act endangers people by exposing them
to the hazards of HIV transmission. To date, there has been only one
documented instance of caregiver-to-patient HIV transmission in
America; this case was reported in Florida a few years ago. On the
other hand, the ADA has kept thousands of Americans with
disabilities working and leading healthy and productive lives. Mr.
Bovard inaccurately incites fear in many readers and leads them to
believe the government is doing the country a disservice by
implementing the ADA.
In one instance, he tells the story of a District of Columbia
court that ruled that a D.C. firefighter was denied his rights by
not being allowed to perform mouth-to-mouth resuscitation because he
had hepatitis B. The ADA requires employers to reach reasonable
accommodations with employees to allow them to continue working.
Reasonable accommodations include the use of flexible schedules,
special facilities and mechanisms that will allow the employees to
continue in their task without unduly burdening the employers. In
the case of the firefighters, there are two simple devices that most
Emergency Medical Services use that can easily solve that problem:
the first is a mechanical respiratory assistance device that allows
the EMS worker to avoid mouth-to-mouth contact completely, and the
second is a mouthpiece developed years ago to prevent mouth-to-mouth
contact between the EMS worker and the patient.
Mr. Bovard also states that there are 7,000 HIV-positive
physicians practicing in the U.S. This is a gross inaccuracy.
According to the best figures, the highest accurate estimate of the
number of practicing HIV-positive physicians is 2,300. I think that
the number used by Mr. Bovard actually refers to the total number of
cases of HIV infection among physicians since the epidemic began.
Most of those 7,000 infections were contracted outside the
workplace, and of that number, most of the infected physicians have
already died. Mr. Bovard continues by saying that the chance of an
HIV-positive doctor infecting a patient is 8.1%. Probability
arguments tend to be confusing. However, after more than a decade of
dealing with HIV, we have only one documented instance of
provider-to-patient transmission. HIV transmission is preventable,
and we have the tools and the knowledge to keep people safe and
The key to dealing with this serious issue is not to discriminate
or incite hysteria. We must be certain that universal precautions
against blood-born pathogens are applied consistently and correctly
in places where risk of occupational exposure may be greater.
Regardless of whether a person is a physician, dentist, nurse or
patient, it is not always possible to know in advance if he or she
is HIV positive. There is no reason to be "extra cautious" only in
select cases. For the safety of everyone involved, all caregiving
situations must be treated the same. Health care workers and
patients should be cautious and safe every time. This is certainly
possible within the framework of the Americans with Disabilities
Kristine M. Gebbie, R.N.
National AIDS Policy Coordinator
Executive Office of the President