THE AMERICANS WITH DISABILITIES ACT AND HIV
BY THOMAS D. SCHNEID
Fire departments frequently ask whether a firefighter who is HIV-positive is protected under the Americans with Disabilities Act (ADA). In most circumstances, being HIV-positive will qualify to protect the individual because the disability is permanent in nature and most individuals possess a record of the disability. These are the first two parts of the three-part test for ascertaining whether an individual is qualified under the ADA. Evaluate every aspect of your hiring, promotion, and even standard operating procedures to ensure they are not discriminating against qualified individuals under the ADA.
Can your department be held liable if an EMT or firefighter refuses to provide emergency treatment to an individual who is HIV-positive? In the recent case of Charone v. Freemont Hospital (N.D. Ohio, Western Division, June 14, 1994), a federal jury awarded $512,000 in damages against a hospital and physician for their failure to provide treatment to an HIV-positive patient. In this case, brought by the estate of the deceased, the individual was taken to the hospital and ultimately died of AIDS in April 1993. The estate of the individual brought charges under the Rehabilitation Act, Title III of the ADA, as well as other federal statutes and state tort law, alleging that the hospital and physician denied treatment to the individual with AIDS. The jury found for the plaintiff`s estate on the Rehabilitation Act claim and ruled for the defendants on the federal statutes and state law claims. The court did not permit the ADA claim to go to the jury. The jury verdict included $62,000 in compensatory damages against both defendants, $150,000 in punitive damages against the physician, and $300,000 in punitive damages against the hospital.
This case exemplifies the potential liability that may be present in situations where individuals or organizations possessing a duty to provide care fail to do so because an individual is HIV-positive or has AIDS.
EVALUATE YOUR SOPs
Has your department evaluated its SOPs with regard to EMT services for first-aid response? Is your department in compliance with the OSHA bloodborne pathogens standard, and do all of your EMTs and firefighters possess the proper personal protective equipment and know the proper procedures for assisting individuals? What would your department`s response be should a firefighter or EMT refuse to provide first aid or other medical services to an individual?
How would your organization react in the following hypothetical situation? A firefighter or EMT responds to a call where an individual needs CPR. The individual has a medical alert badge that identifies him as being HIV-positive. The firefighter or EMT goes to the response vehicle only to find that the one-way airway and other respiratory equipment had been removed from the vehicle. The firefighter or EMT refuses to provide CPR because he does not have the proper equipment. The individual dies at the scene. The family of the victim brings suit against the firefighter/EMT, department, and others.
Who is responsible to the victim? The firefighter? The department? The municipality? All parties? Was the firefighter required to provide CPR if the proper equipment was not provided by his department? Would the department be liable for failure to provide the appropriate equipment to the firefighter/ EMT? Does the department or firefighter owe a duty to respond to the victim? Is the municipality or other entity responsible to the victim? These are but a few of the questions that could arise when ascertaining liability should a department not respond properly to a victim. Numerous cases with regard to failure to respond and improper responses in 911 cases are on the books. Is your department properly prepared to address these types of situations?
Another case of interest recently was filed in the Federal District Court for the Northern District of Illinois (Doe v. City of Chicago (#94C4122, Northern District Illinois, Eastern Division, filed on July 7, 1994). An individual who is HIV-positive is alleging that the City of Chicago Police Department violated the ADA by maintaining a practice that required HIV testing of all candidates for employment. The individual alleges he was removed from the list of eligible candidates after a blood test revealed he was HIV-positive and thus the police department refused to hire him because of his HIV status. The individual further alleges he passed all tests prior to the blood test and earned a “well-qualified” status in the testing procedures. The individual is seeking declaratory and injunctive relief as well as compensatory and punitive damages and attorneys` fees and costs against the city of Chicago.
Although this case is still pending before the federal courts, this action should prompt fire departments to evaluate their personnel and selection procedures to ensure they are in compliance with the ADA and nondiscriminatory in nature. Has your department evaluated its selection, interviewing, testing, and other procedures with regard to new candidates and promotions? Has your personnel department or other related departments reviewed the Equal Employment Opportunity Commission`s new Enforcement Guidance on Pre-Employment Disability Related Inquiries and Medical Examinations under the ADA [Publication (May 1994)]?
The number of claims filed with the EEOC under the Americans with Disabilities Act has far exceeded all expectations. Your department should constantly evaluate all aspects of its operations to ensure that it is in compliance with the ADA and all other applicable laws. In the same way that you preplan and prepare for every contingency, you also should preplan and prepare to achieve and maintain compliance with the ADA for the long run. n
THOMAS D. SCHNEID is an associate professor and attorney with the Department of Loss Prevention of Eastern Kentucky University`s Fire and Safety Engineering Technology Program. He has a bachelor`s degree in education, a master`s degree and certificate of advanced study in safety, a law degree, and an LLM (master of laws) degree in labor and employment. He has 14 years of experience as a consultant for general industry.
