AIDS AND THE LAW

SOME QUESTIONS AND ANSWERS

Prepared by Elliot T. Fishman, Esq.

Revised 1990

Reprinted courtesy of the Columbus AIDS Task Force

These answers are intended to provide some general public education on the topic of AIDS and the law. Readers are encouraged to contact an attorney for specific legal counsel.

1. Can an employer fire, dèmote, or refuse to hire a person with AIDS, ARC, or HIV infection?

Under both federal and Ohio law, persons with AIDS or ARC (and probably persons with HIV infection) are considered to be handicapped, and employers can not discriminate against such persons, as long as such persons are able to do their work. Furthermore, employers may be required to provide reasonable accommodations for PWAS.

Persons who are HIV-seropositive may or may not be covered under state laws, although increasing numbers of experts believe such persons are covered. Unfortunately, such discrimination still occurs, regardless of the status of the law.

2. Can a landlord evict a person because s/he has AIDS, ARC, or HIV infection? Most handicap laws also prohibit housing discrimination. Assuming that persons with HIV diseases are considered to be handicapped, and assuming that the person is obeying the terms of his/her lease, s/he cannot be evicted or denied housing because s/he has this disease.

3. Can stores, public transportation carriers, funeral homes, and other businesses discriminate against persons because they have HIV disease?

Most handicap laws prohibit discrimination in "public accommodations." Under these laws, restaurants, shops, public transportation companies, and funeral homes probably cannot discriminate against such persons. Some exceptions may exist to this general rule. 4. Can an employer fire me because I'm Gay or presumed to be in an AIDS "high risk group?"

Unfortunately, most cities and states do not prohibit anti-Gay discrimination. However, persons who work for the State of Ohio, and for the City of Columbus, are in most cases protected from discrimination by virtue of Governor's Executive Order 83-64 and the Mayor's Equal Employment Opportunity Policy. In addition, federal law forbids discrimination on the basis of perceived disability, which may assist persons who are perceived as having AIDS.

5. Can an employer force someone to submit to an HIV antibody test?

In general, employers cannot test persons for a discriminatory reason. Therefore, preemployment HIV testing may be viewed as a method of handicap discrimination. There may be limited circumstances where an employer may test employees (after hiring) for HIV. However, no one may order an HIV test in Ohio without first obtaining, in most cases, the informed consent of the person.

The law in this area is not fully developed; if your employer wishes to have you undergo HIV testing, you should consult with an attorney before taking the test.

6. Can the military force someone to submit to an HIV antibody test?

Yes, in general, the military can require such testing. It is important to note that this form of testing by the military is rarely confidential.

7. Can insurance companies require HIV testing upon application for insurance? In most health insurance policies, and in group life insurance policies under $100,000, HIV testing is not allowed. However, HIV testing is permissible for individual life and health insurance policies. Insurance companies may also test for HIV in small group (under 25 persons) policies. You should always check with an attorney if an insurance company asks

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you to be tested for HIV.

Ohio insurance companies can, however, ask you whether or not you have been diagnosed with HIV infection, ARC or AIDS. They cannot ask you questions about your sexual orientation.

Incidentally, insurance companies can report the results of such a test to the Medical Information Bureau (MIB), or other insurance reporting services. Under Ohio law, however, such a report must use a generic code and not a specific diagnosis of HIV infection or AIDS.

8. Can insurance companies deny health, disability or life insurance because of a person's HIV infection, ARC, or AIDS?

Yes. Insurance companies may refuse to grant you insurance because you have HIV disease. A refusal of insurance may not happen with regard to a large group (more than 25 persons) insurance policy.

9. Can an insurer refuse to pay AIDS or ARC-related claims?

Probably not. This would probably constitute an unfair insurance practice, which is unlawful. However, many insurance companies try to argue that a person was infected prior to the start date of the insurance policy; that person, the companies say, had a preexisting condition, and they can therefore refuse to pay that claim, in many circumstances. In addition, many companies refuse to pay for drugs or medical treatments which are considered to be "experimental." If you have been refused payment of a claim, contact an attorney.

10. Can a doctor, dentist or hospital refuse to treat me because I have AIDS, ARC, or HIV infection?

Hospitals or clinics which receive federal funding (such as Medicare or Medicaid) cannot in general refuse to treat such persons. Ohio law also prohibits the refusal of medical care on the basis of HIV status.

Doctors or dentists who refuse to treat such persons may also be considered "public accommodations," and would therefore be in violation of appropriate handicap laws. However, this issue has not been clearly decided. Check with an attorney in the event of a refusal of medical treatment.

11. Are medical records confidential?

Doctor-patient communications are generally regarded as strictly confidential. However, if you have any type of HIV disease, your name will be reported to the state health authorities. You may also be asked, but you cannot be forced, to name your sexual partner(s).

In addition, there are a limited number of persons to whom a doctor may disclose this information without your consent. For example, a doctor may, under Ohio law, tell your spouse or sexual partner that you are HIV-infected.

Of course, if you sign a release (to your doctor, insurance company,

employer, etc.), you give up your rights to such confidentiality. Therefore, be careful about what you sign.

12. Who can make financial and medical decisions for persons who are too ill to make them themselves?

The law assumes that persons have chosen their next-of-kin (parent; child, or sibling, in most cases) to make such decisions. In order to designate a friend or significant other as the decision-maker, you may execute a durable power of attorney. This is a very important document for persons who wish to have someone other than a relative make medical or other decisions.

In addition, under Ohio law, persons can, in advance, nominate another person to be their guardian, in the event a court determines that the appointment of such a guardian is necessary.

A knowledgeable attorney can assist in preparing these important documents. 13. Why do people need a will?

Without a will, everything a person owns will go to his or her relatives, or to the state,,

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