Could Maryland require its prison health care contractors to test employees for HIV and restrict what HIV-positive doctors and nurses could do?

Plain-English summary

Governor William Donald Schaefer asked the Attorney General whether the state could require contractors that provide health care in Maryland's correctional facilities to test their employees for HIV, and to impose special restrictions on employees who tested positive. The question arose after two dentists who had treated prisoners in the Baltimore area died of AIDS-related complications.

The opinion drew a sharp line based on the kind of work a provider did. For health care providers whose jobs carried essentially no risk of transferring blood or bodily fluid to a patient, the opinion concluded that federal disability law (the Rehabilitation Act and the incoming Americans with Disabilities Act) barred any special testing or workplace restriction, and that forcing testing on this group would also violate the Fourth Amendment, because no legitimate action could follow from a positive result anyway. For providers who regularly performed invasive procedures, where a scalpel cut or needlestick genuinely could transmit HIV to a patient, the opinion reached the opposite conclusion: federal law did not bar special restrictions, but only if a public health official first made an informed, medically grounded finding that the risk to patients was unacceptable. If that medical finding was made, the state could direct its contractors to restrict HIV-positive providers from invasive work and to identify who those providers were. The opinion stressed throughout that the ultimate judgment about actual medical risk belonged to public health experts, not to the Attorney General, and it separately worked through Maryland's own informed-consent, employment-inquiry, and human-relations statutes, concluding each followed the same basic rule as federal law.

Currency note

This opinion was issued in 1991, near the start of the modern legal and medical understanding of HIV and AIDS, and it relied on Centers for Disease Control guidance, a single CDC case report of possible provider-to-patient transmission, and case law interpreting the Rehabilitation Act shortly before the Americans with Disabilities Act took effect for state and local governments. Medical understanding of HIV transmission risk, treatment (including antiretroviral therapy), and federal and Maryland disability law have all changed substantially since 1991. Treat this page as historical context, not current legal advice. Verify current medical guidance and current disability-discrimination law before relying on any specific conclusion described here.

Common questions

Could a state in 1991 fire or restrict a health care worker just for being HIV-positive?
According to this opinion, not automatically. The Attorney General concluded that federal disability law protected HIV-positive providers whose jobs carried no meaningful risk of transmitting the virus to a patient, and restrictions were lawful only for providers who regularly performed invasive procedures, and only if a public health official made a specific, medically grounded finding that the risk was unacceptable.

Who got to decide whether the risk from an HIV-positive provider was serious enough to justify restrictions?
The opinion was explicit that this was a medical judgment for public health officials, not a legal judgment for the Attorney General. It described the required finding as one based on "current medical evidence and evolving standards of patient care," taking into account feasible infection control methods.

Could Maryland require prison health contractors to test employees for HIV?
The opinion concluded that nothing in Maryland's informed-consent statute for HIV testing prevented an employer, including a state contractor, from requiring an employee to be tested, and that a testing requirement tied to a genuine medical justification for invasive-procedure providers would also survive a Fourth Amendment challenge.

Background and statutory framework

The opinion applied Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794, which barred federally funded state agencies from disability discrimination, alongside the soon-to-take-effect Title II of the Americans with Disabilities Act, which the opinion treated as extending the same basic protections to state and local governments regardless of federal funding. Both statutes defined HIV infection as a covered disability, and both incorporated the framework the U.S. Supreme Court set out in School Board of Nassau County v. Arline, 480 U.S. 273 (1987), for evaluating claims involving contagious disease: the nature of the risk, the duration of the risk, the severity of potential harm, and the probability of transmission, all assessed through reasonable medical judgment, with courts instructed to defer to public health officials on these questions.

Applying that framework, the opinion found the first three Arline factors were not genuinely disputed for HIV (transmission requires contact with infected blood or bodily fluid, infection is permanent, and the potential harm is severe), which meant everything turned on the fourth factor, the probability of transmission given a specific job's actual duties. For providers with no meaningful blood-exposure risk, that probability was zero and no restriction was permitted. For providers who regularly performed invasive procedures, the opinion found federal law would tolerate restrictions if grounded in a genuine medical risk assessment, citing case law such as Leckelt v. Board of Comm'rs, 909 F.2d 820 (5th Cir. 1990), where a nurse's termination for refusing to disclose HIV test results survived a Rehabilitation Act challenge because of a legitimate medical justification, contrasted with Glover v. Eastern Nebraska Community Office of Retardation, 686 F. Supp. 243 (D. Neb. 1988), where blanket HIV testing of caregivers failed because the medical evidence showed the actual risk was, in the district court's words, "minuscule, trivial, extremely low, extraordinarily low, theoretical, and approaches zero."

The opinion also walked through several layers of Maryland law, finding each consistent with the federal analysis. Maryland's informed-consent statute for HIV testing, HG §18-336(b), did not prevent an employer from requiring employee testing. Article 100, §95A limited what medical questions an employer could ask a job applicant to those bearing a "direct, material, and timely relationship" to fitness for the position, which the opinion read as permitting HIV-status questions only for jobs involving routine invasive procedures where medical evidence supported a restriction. The Human Relations Commission Act, Article 49B, and the Code of Fair Practices executive order were both read to track the same federal standard: restrictions on HIV-positive providers were lawful only when justified by sufficient medical evidence of patient risk, not otherwise.

Citations and references

Statutes:

• 29 U.S.C. §794 (§504 of the Rehabilitation Act of 1973), barring disability discrimination by federally funded state agencies
• 29 U.S.C. §794(a), the Rehabilitation Act's core nondiscrimination text
• §201(2) of the ADA, defining "qualified individual with a disability" under Title II
• §201(1)(A) of the ADA, defining "public entity" to include the state
• §102(a) of the ADA (Title I), the general employment-discrimination prohibition
• §101(8) of the ADA, defining a "qualified" individual as one who can perform the job's essential functions
• §102(b)(6) of the ADA, prohibiting selection criteria that screen out individuals with disabilities absent job-relatedness
• §102(c)(4)(A) of the ADA, limiting employer medical inquiries to those job-related and consistent with business necessity
• 29 U.S.C. §706(8)(c), excluding from Rehabilitation Act protection a person whose contagious disease poses a direct threat or prevents job performance
• §103(b) of the ADA, allowing a "direct threat to health or safety" employment requirement
• §101(10) of the ADA, defining "undue hardship"
• §102(b)(5)(A) of the ADA, excusing the reasonable-accommodation duty where undue hardship would result
• §101(3) of the ADA, defining "direct threat"
• §18-338.1(1) of the Health-General Article, directing development of an HIV practice protocol for physicians, enacted by Chapter 535 (House Bill 194) of the Laws of Maryland 1991
• §18-336(b) of the Health-General Article, requiring informed consent and pretest counseling before HIV testing
• Article 100, §95A of the Maryland Code, limiting an employer's medical questions to applicants to those job-related
• Article 100, §95(a)(2), defining "employer" for purposes of that section
• Article 49B, §16(a)(1), prohibiting employment discrimination based on unrelated physical or mental handicap
• Article 49B, §15(b), applying that provision to employers with 15 or more employees
• §15(g) of Article 49B, defining "physical or mental handicap"
• COMAR 14.03.02.02, the Human Relations Commission's regulation recognizing HIV infection as a handicap
• COMAR 14.03.02.05A(2), permitting exclusion of individuals who would create a dangerous condition to life or health
• COMAR 14.03.02.05F(1), permitting otherwise-prohibited action where a bona fide occupational qualification requires it
• Code of Fair Practices, Executive Order 01.01.1987.20, requiring state contracts to prohibit disability discrimination
• Article VI(A) of the Code of Fair Practices, the specific nondiscrimination clause for state service contracts
• Chapter 535 (House Bill 194) of the Laws of Maryland 1991, directing the Medical and Chirurgical Faculty to develop an HIV practice protocol for physicians
• 28 C.F.R. §35.130(b)(3)(i) (proposed), barring a public entity from using contractual arrangements that have a discriminatory effect
• 29 C.F.R. §1630.2(o)(1)(ii) (proposed), defining "reasonable accommodation" under EEOC regulations
• Cal. Health & Safety Code §199.21, cited as an example of a state statute expressly barring employer-mandated HIV testing

Cases:

• Estelle v. Gamble, 429 U.S. 97 (1976), U.S. Supreme Court decision establishing the state's Eighth Amendment duty to provide adequate medical care to prisoners
• School Board of Nassau County v. Arline, 480 U.S. 273 (1987), U.S. Supreme Court decision setting out the framework for evaluating disability-discrimination claims involving contagious disease
• Chalk v. United States District Court, 840 F.2d 701, 706-08 (9th Cir. 1988), federal appellate decision applying the Arline factors to a teacher with AIDS
• Hall v. United States Postal Service, 857 F.2d 1073, 1080 (6th Cir. 1988), federal appellate decision on when an accommodation is not "reasonable"
• Arline v. School Bd., 772 F.2d 759, 765 (11th Cir. 1985), aff'd 480 U.S. 273 (1987), the appellate decision underlying the Supreme Court's Arline ruling
• Leckelt v. Board of Comm'rs, 909 F.2d 820, 820 (5th Cir. 1990), federal appellate decision upholding termination of a nurse for refusing to disclose HIV test results
• Leckelt v. Board of Comm'rs, 714 F. Supp. 1377 (E.D. La. 1989), aff'd 909 F.2d 820 (5th Cir. 1990), the trial court decision in the same case
• Local 1812, AFGE v. Department of State, 662 F. Supp. 50 (D.D.C. 1987), federal district court decision upholding HIV testing of Foreign Service officers
• National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989), U.S. Supreme Court decision on Fourth Amendment review of government drug-testing programs
• Plowman v. Department of the Army, 698 F. Supp. 627, 636 (E.D. Va. 1988), federal district court decision upholding HIV testing based on medical need to know
• Glover v. Eastern Nebraska Community Office of Retardation, 686 F. Supp. 243 (D. Neb. 1988), aff'd 867 F.2d 461 (8th Cir.), cert. denied 110 S. Ct. 321 (1989), federal decision striking down blanket HIV testing unsupported by medical evidence
• Rossi v. Estate of Almarez, Case No. 90344028 CL123396, slip op. at 4 (Cir. Ct. Balto. City May 23, 1991) (Kaplan, J.), Maryland circuit court decision noting a study of surgeons showing no documented HIV transmission to patients
• Sard v. Hardy, 281 Md. 432, 379 A.2d 1014 (1977), Maryland Court of Appeals decision on the physician's informed-consent duty
• Unnamed Physician v. Commission on Medical Discipline, 285 Md. 1, 12, 400 A.2d 396 (1979), Maryland Court of Appeals decision on the scope of Article 100, §95A
• Harden v. Mass Transit Admin., 277 Md. 399, 408, 354 A.2d 817 (1976), Maryland Court of Appeals decision on the same statute
• Mass Transit Administration v. Commission on Human Relations, 68 Md. App. 703, 716, 515 A.2d 781 (1986), Maryland appellate decision looking to Rehabilitation Act cases for guidance interpreting the Human Relations Commission Act
• Baltimore & Ohio R.R. Co. v. Bowen, 60 Md. App. 299, 312, 482 A.2d 921 (1984), Maryland appellate decision citing Rehabilitation Act cases on burdens of proof
• Commission on Human Relations v. Mass Transit Admin., 294 Md. 225, 233, 449 A.2d 385 (1982), Maryland Court of Appeals decision on the Commission's primary interpretive role over the Human Relations Commission Act

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1991/Volume76_1991.pdf (this opinion appears at printed pages 260-275 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

HEALTH

Communicable Diseases - Civil Rights and Discrimination -
Disability - Testing of Contractual Health Care
Providers For HIV - Restrictions on Practice of HIV-
Positive Providers

                          June 25, 1991

The Honorable William Donald Schaefer
Governor, State of Maryland

    You have requested our opinion about the legality of a requirement

that contractors providing health care services in State correctional
facilities determine whether any of their employees are infected with the
HIV virus, which causes AIDS. The State would establish this
requirement in order to impose on HIV-positive health care providers
special measures for the protection of the patients in these facilities.

   The ultimate answer to your question depends on a public health

judgment that we are not able to make. That is, the proposed
requirement would be legal only if the activities of HIV-positive health
care providers present a significant risk to the health of patients in the
facility. The decision about the significance of the risk, in turn, requires
expert assessment of the pertinent scientific evidence.

  Under federal law, a person with a disability, including a person

with HIV, may not be subjected to employment restrictions because of
that disability if the person is "qualified" to perform the job. In
particular, a person with an infectious disease may not be subjected to
special restrictions unless the risk of contagion makes the person
unqualified to perform the job even after reasonable steps are taken to
accommodate the disease.

  HIV can be transmitted only if the blood or other bodily fluid of

a person with the disease enters the body of another person. If an HIV-
positive health care provider does not regularly perform invasive
procedures that could result in the passage to a patient of the provider's
blood or other bodily fluid, the risk to the provider's patients is
essentially zero.1 In our opinion, federal law prohibiting discrimination
against individuals with disabilities bars an attempt to impose any special
workplace requirements on this category of health care providers, even
though their jobs might involve patient contact.2 Moreover, because no
action could lawfully be taken on the basis of a positive test result, a
requirement that these providers submit to testing would also violate the
Fourth Amendment to the U.S. Constitution.

   The category of health care providers who regularly perform

invasive procedures presents a different legal issue. In our opinion,
federal law does not preclude special restrictions on this category of
HIV-positive health care providers if the restrictions are justified on
medical grounds. Thus, if the State is to impose by contract special
restrictions on the practice of HIV-positive health care providers, an
appropriate public health official must first make a reasonable
determination along these lines: Based on current medical evidence and
evolving standards of patient care, and taking into account feasible
infection control methods, patients in State correctional facilities
undergoing invasive procedures from HIV-positive providers are subject
to a degree of risk that, as a matter of public health policy, is
unacceptable.

  If such a judgment were reached on the basis of an informed

assessment of the scientific evidence, the State may lawfully direct its
health care contractors to take special steps to protect patients, if
necessary, to forbid HIV-positive providers from engaging in invasive
procedures in State correctional facilities. As a corollary, the State may
require its contractors to identify the providers who would be subject to
these restrictions.

    1
      A word about usage in this opinion: When we refer to a provider who

"regularly" engages in invasive procedures, we mean that these procedures are an
integral part of that provider's practice; we do not mean to imply that some
minimal frequency is necessary. "Invasive procedures," as we use the term,
means procedures that afford a ready pathway for the blood or other bodily fluid
of the provider to enter the patient's body; deferring to medical expertise, we do
not attempt to itemize these procedures. See note 12 below. Finally, although
HIV can be transmitted through bodily fluids other than blood, the medium of
provider-to-patient transmission is most likely to be blood. For brevity's sake,
in the rest of this opinion we will refer to "blood" only, instead of "blood or other
bodily fluid."
2
We are not here discussing persons who have infectious diseases
associated with AIDS (for example, tuberculosis) to the extent that they separately
pose a risk to others. See Hermann & Schurgin, Legal Aspects of AIDS §12:38,
at 12-46 to 12-47 (1991).

                                   I

                            Background

   Your inquiry is a consequence of reports that two dentists who

died of complications from AIDS had treated prisoners in correctional
facilities in the Baltimore area. Both dentists were employees of a
contractor that provides a range of health care services to the Division
of Correction, consistent with the State's duty under the Eighth
Amendment to provide constitutionally adequate medical care to those
in its custody. Estelle v. Gamble, 429 U.S. 97 (1976).

  Persons become infected with HIV when a retrovirus, the human

immunodeficiency virus, enters the bloodstream. "Most persons infected
with HIV are in the asymptomatic incubation stage, thus have no signs
and symptoms [and] look and feel healthy ...." Governor's Advisory
Council on AIDS, Guidelines for Control of Human Immunodeficiency
Virus Infection 1 (May 1989) ("HIV Infection Control"). See also, e.g.,
Brandt, Health Care Workers and AIDS, 48 Md. L. Rev. 1, 3 (1989).
Their diagnosis is typically established through blood tests that show the
presence of antibodies formed in response to the virus's entry into the
body.3

  "It is presently thought that most persons who are infected will

eventually develop AIDS, a stage of the infection defined by the
presence of one or more of a number of infections or cancers." HIV
Infection Control at 1. AIDS is a fatal illness, typically causing "a
lingering death commonly resulting from opportunistic infections and
often accompanied by both physical and mental debilitation." Id.

  The HIV virus is transmitted from person to person "by sexual

contact, by contact with contaminated needles, from mother to baby, by
transfusion of infected blood or blood products, and from infected blood
or bloody body fluids in contact through breaks in the skin or mucous
membranes." Id. The Governor's Advisory Council reports "no
documented spread of HIV by ordinary household, social or office
contacts." Id. See generally Friedland & Klein, Transmission of the
Human Immunodeficiency Virus, 317 N. Eng. J. Med. 1125 (1987).
"Thus no special precautions are required for HIV-infected workers who
only come into casual contact with other persons in the job setting ....
A risk of transmission of HIV infection from a health care worker to a

    3
       Because the antibodies might not be present in the bloodstream for

weeks or months after the person has contracted the disease, a negative HIV test
does not establish that the person is free of the disease.

patient exists in situations where there is trauma to the patient, as in
invasive surgical or dental procedures, and trauma to the worker, such
as a scalpel or needlestick injury." HIV Infection Control at 21.

  Health care providers have been urged by authoritative bodies like

the Centers for Disease Control ("CDC") and the Governor's Advisory
Council to adhere to "universal precautions" when engaging in invasive
procedures, notably, the wearing of latex gloves. HIV Infection
Control at 6-8. The barrier of the gloves protects both the patient and
the provider.4

  These precautions do not work, of course, if they are not

followed. An expert in one case testified "that approximately five to ten
percent of the time health care workers do not comply with
recommended universal precautions." Leckelt v. Board of Comm'rs, 909
F.2d 820, 820 (5th Cir. 1990). And even the most conscientious
provider could suffer an accident, latex gloves are no match for a
scalpel. "Studies indicate that surgeons will cut or puncture a glove in
approximately one out of every four cases and will sustain a significant
skin cut in one out of every forty cases." Gostin, Hospitals, Health
Care Professionals, and AIDS, 48 Md. L. Rev. 12, 20 (1989).

  Until recently, no case of provider-to-patient transmission had

been reported in the literature. In fact, several studies of HIV-infected
surgeons showed no transmission: "Out of a total of 4,703 patients
studied there were no documented cases of HIV transmission from
surgeons infected with AIDS to their patients." Rossi v. Estate of
Almarez, Case No. 90344028 CL123396, slip op. at 4 (Cir. Ct. Balto.
City May 23, 1991) (Kaplan, J.).

  However, last year the CDC reported a case "consistent with

transmission of HIV to a patient during an invasive dental procedure
...." CDC, Possible Transmission of Human Immunodeficiency Virus to
a Patient During an Invasive Dental Procedure, 39 Morbidity and
Mortality Weekly Rep. ("MMWR") 489, 491 (1990). See also 40
MMWR 21 (1991).

    4
       Health care providers treat a patient population comprising some

unknown percentage of persons infected with HIV; hence, providers must take
precautions against contracting the disease from their patients. The percentage
of the prison population with HIV has been estimated to be eight percent.
Baltimore Sun, May 30, 1991, at Bl.

  This new evidence of provider-to-patient transmission has brought

into sharp focus the related issues of testing of health care providers and
restrictions on those who test positive for HIV. Five years ago, the
CDC discouraged routine testing "since the risk of transmission is so
low." CDC, Recommendations for Preventing Transmission ... During
Invasive Procedures, 35 MMWR 221, 223 (1986). Accord, HIV
Infection Control at 21 ("Routine screening of workers for HIV
antibodies is not recommended as a means of preventing the
transmission of HIV."). See also Gostin, HIV-Infected Physicians and
the Practice of Seriously Invasive Procedures, Hastings Center Rep.,
Jan./Feb. 1989 at 35. Even in light of the new evidence, one
commentator suggests that mandatory testing is unnecessary:

        For now, given the small risk of transmission, it
        appears that the balance between utility and risk
        does not warrant mandatory testing of health care
        workers or reporting by them. Instead, voluntary
        testing and subsequent voluntary action seem to
        be most appropriate.

Brennan, Transmission of the Human Immunodeficiency Virus in the
Health Care Setting, Time for Action, 324 N. Eng. J. Med. 1504,
1506 (1991).5

  Yet in an editorial accompanying that article, the editor of the New

England Journal of Medicine herself wrote that testing health care
providers (and hospitalized patients too) "makes sense from several
standpoints .... [B]ecause it is remotely possible that there could be an
exchange of blood during a medical procedure, patients have a right to
know whether a doctor or nurse who performs invasive procedures is
infected with HIV." Angell, A Dual Approach to the AIDS Epidemic,
324 N. Eng. J. Med. 1498, 1499 (1991).6

    5 It has been argued that mandatory testing of health care providers is

a step down a slippery slope, leading to a loss of trust between physicians and
patients as well as an erosion of the confidentiality commitment that has
encouraged people to obtain testing and counseling voluntarily. Comment, The
AIDS Project: Creating a Public Health Policy, Rights and Obligations of
Health Care Workers, 48 Md. L. Rev. 106, 123 (1989).
6
Dr. Angell coupled her recommendation about epidemiologic control
with concern about the need for the protection of individual rights: "Clearly,
HIV-infected persons need to be protected against discrimination and hysteria, but
doing so requires social and political measures, not epidemiologic ones." Id.

  The issue of HIV-infected health care providers drew legislative

attention during the past session. Chapter 535 (House Bill 194) of the
Laws of Maryland 1991 provides in part as follows:

             (1) The Medical and Chirurgical Faculty of
       the State of Maryland in consultation with the
       Centers for Disease Control, the Maryland
       Hospital Association, and the Department of
       Health and Mental Hygiene shall develop a
       practice protocol for physicians who are infected
       with HIV.

             (2) This practice protocol shall be reported
       ... to the General Assembly on December 2,
       1991.

§18-338.1(1) of the Health-General Article (effective July 1, 1991).

                                II

                          Federal Law

A. Rehabilitation Act and Americans With Disabilities Act

  State agencies are currently subject to §504 of the Rehabilitation

Act of 1973, 29 U.S.C. §794, if they receive federal financial
assistance. This statute provides in general that "[n]o otherwise qualified
individual with handicaps ... shall, solely by reason of her or his
handicap, be excluded from the participation in, be denied the benefits
of, or be subjected to discrimination" in the operations of such a State
agency. 29 U.S.C. §794(a).

  In addition, starting next year the State will be subject to Title II

of the Americans with Disabilities Act (the "ADA"), which broadly
prohibits state and local governments from engaging in discrimination
against persons with disabilities. "[T]itle II of the ADA is, in essence,
an extension of the nondiscrimination mandate of section 504 to those
State and local governments that do not receive Federal financial
assistance ...." 56 Fed. Reg. 8538 (February 28, 1991) (Department of
Justice proposed regulations). Because the basic principles governing
the State's actions remain unchanged, we will discuss the two statutes
together.

  HIV infection, whether or not it has developed into AIDS, is a

"disability" under the Rehabilitation Act and the ADA. See H.R. Rep.
No. 101-485, 101st Cong. 2d Sess. at 51-52 (1990); 56 Fed. Reg. 8538,
8540 (February 28, 1991) (Department of Justice proposed regulations).

  Section 202 of the ADA provides that "no qualified individual with

a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any
such entity."7 A "qualified individual with a disability" is one who
"meets the essential eligibility requirements for ... participation in
programs or activities provided by a public entity." §201(2). In its
proposed regulations, the Department of Justice takes the view that Title
II's antidiscrimination requirements apply to a state's contractual
undertakings.8 Further, Title II's broad proscription of discrimination
is intended to incorporate standards set out elsewhere in the ADA,
including the duty of employers under Title I. H.R. Rep. No. 101-485,
101st Cong., 2d Sess. 84 (1990); S. Rep. No. 101-116, 101st Cong.,
2d Sess. 44 (1990). Thus, the State could not require by contract that
its contractor engage in unlawful discrimination against the contractor's
employees.

  Under Title I of the ADA, employers may not "discriminate

against a qualified individual with a disability because of the disability
of such individual in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment."
§102(a).9 An individual is "qualified" if he or she "can perform the
essential functions of the employment position that such individual holds
or desires." §101(8).

    7
        The State is a "public entity." §201(1)(A).
    8
      Proposed 28 C.F.R. §35.130(b)(3)(i) states that "[a] public entity may

not, directly or through contractual or other arrangements, utilize criteria or
methods of administration ... [t]hat have the effect of subjecting qualified
individuals with disabilities to discrimination on the basis of disability." 56 Fed.
Reg. at 8553.
9
Title I of the ADA becomes effective in July 1992 for employers with
25 or more employees and in July 1994 for employers with 15 to 25 employees.
Employers with fewer than 15 employees are not covered.

  Among the examples of prohibited discrimination set out in

§102(b) is "using qualification standards, employment tests or other
selection criteria that screen out an individual with a disability or a class
of individuals with disabilities, unless the standard, test or other
selection criteria ... is shown to be job-related for the position in
question and is consistent with business necessity." §102(b)(6). In
addition, an employer may not "make inquiries of an employee as to
whether such employee is an individual with a disability or as to the
nature or severity of the disability, unless such ... inquiry is shown to
be job-related and consistent with business necessity." §102(c)(4)(A).

  In School Board of Nassau County v. Arline, 480 U.S. 273 (1987),

the Supreme Court discussed the factors to be considered in deciding
whether the Rehabilitation Act affords job protection to a person with a
contagious disease. Quoting from an amicus brief filed by the American
Medical Association, the Supreme Court wrote that the inquiry should
focus on the following:

       "facts, based on reasonable medical judgments
       given the state of medical knowledge, about (a)
       the nature of the risk (how the disease is
       transmitted), (b) the duration of the risk (how
       long is the carrier infectious), (c) the severity of
       the risk (what is the potential harm to third
       parties) and (d) the probabilities the disease will
       be transmitted and will cause varying degrees of
       harm."

480 U.S. at 288. Significantly, the Court instructed the lower courts
that they "normally should defer to the reasonable medical judgments of
public health officials" about these matters. Id.

  Both the Rehabilitation Act (as amended in 1988) and the ADA

directly address the issue of individuals with contagious disease, and
both codify the Supreme Court's focus on actual medical risk. 29
U.S.C. §706(8)(c) excludes from the definition of "individual with
handicaps" someone "who has a currently contagious disease or infection
and who, by reason of such disease or infection, would constitute a
direct threat to the health or safety of other individuals or who, by
reason of the currently contagious disease or infection, is unable to
perform the duties of the job." Under §103(b) of the ADA, an employer
may adopt a requirement "that an individual shall not pose a direct threat
to the health or safety of other individuals in the workplace." §103(b).
A "direct threat" is "a significant risk to the health or safety of others that
cannot be eliminated by reasonable accommodation." §101(3). The
ADA's legislative history explains that, "in determining what constitutes

a significant risk, ... the employer may take into consideration such
factors as the magnitude, severity, or likelihood of risk to other
individuals in the workplace ...." H. Conf. Rep. No. 101-596, 101st
Cong., 2d Sess. 60 (1990). See also H.R. Rep. No. 101-485, 101st
Cong., 2d Sess. 76 (1990) ("the term 'direct threat' is meant to connote
the full standard set forth in the Arline decision").

  With respect to HIV, the facts about the first three Arline factors

are not subject to reasonable dispute: a person is at risk of getting the
disease through contact with infected blood or other bodily fluid, but not
otherwise; a person with HIV is always infectious; and the potential
harm to third parties is devastating.

  The indisputability of the first factor means that the Rehabilitation

Act and the ADA do not allow discrimination against persons infected
with HIV, including health care providers, whose jobs simply do not
entail any significant risk that a patient would become exposed to the
provider's blood. If the risk of blood exposure is essentially zero, the
provider's infectiousness in other contexts and the severity of the disease
are irrelevant. See Chalk v. United States District Court, 840 F.2d 701,
706-08 (9th Cir. 1988) (applying Arline factors to teacher with AIDS).

  On the other hand, if an HIV-positive health care provider

routinely engages in invasive procedures, the first three Arline factors all
point to a decision that the provider is not qualified. The determinative
factor is the fourth, "the probabilities the disease will be transmitted"
given the nature of the provider's tasks. This assessment of probabilities
requires knowledge of the latest epidemiologic and clinical evidence. It
is for an expert in the field to make, not the Attorney General.

  Compliance with the ADA requires an additional expert judgment.

If an individual with an infectious disease can safely work with
"reasonable accommodation," the employer has a duty to provide that
accommodation. Arline, 480 U.S. at 288.10 Conversely, "[a] person
who poses a significant risk of communicating an infectious disease to
others in the workplace will not be otherwise qualified for his or her job
if reasonable accommodation will not eliminate that risk." 480 U.S. at
287 n. 16.

    10
         Proposed regulations of the Equal Employment Opportunities

Commission describe a "reasonable accommodation" in part as "[a]ny
modification or adjustment to the work environment, or to the manner or
circumstance under which the position held or desired is customarily performed,
that enables a qualified individual with a disability to perform the essential
functions of that position ...." 56 Fed. Reg. 8578, 8588 (February 28, 1991)
(proposed 29 C.F.R. §1630.2(o)(1)(ii)).

  "An accommodation is not reasonable, and will therefore not be

required, if ... it imposes an undue hardship upon the operation of the
... employer." Hall v. United States Postal Service, 857 F.2d 1073,
1080 (6th Cir. 1988). See ADA §101(10) (defining "undue hardship")
and 102(b)(5)(A) (excusing "reasonable accommodation" duty if "undue
hardship" on business operation would result). The employer's decision
not to provide an accommodation to an individual with a disability must
"reflect a well-informed judgment grounded in a careful and open-
minded weighing of the risks and alternatives ...." Arline v. School Bd.,
772 F.2d 759, 765 (11th Cir. 1985), aff'd 480 U.S. 273 (1987).

  Except for the danger of accidental cuts or punctures serious

enough to penetrate a glove, the risk to a patient posed by an HIV-
positive health care provider who performs invasive procedures but who
adheres scrupulously to universal precautions is negligible. Plainly, the
risk increases if the provider fails to adhere to these precautions.
Whether that increase reaches a medically significant level is for an
expert in the field to determine.

  If measures to ensure compliance with universal precautions, for

example, monitoring, were feasible and effective, and if the risk of a
medically significant accident were very low, these measures would be
the kind of "reasonable accommodation" required by the ADA, and the
State could not resort to more severe measures limiting the work
opportunities of HIV-positive providers. Again, the judgment whether
these measures could be effective at a reasonable cost is for the
appropriate public health official.11

  Our focus on the legal significance of actual patient risk finds

support in an official position of the American Medical Association,
whose views were given decisive weight in Arline. The AMA has
concluded that "patients are entitled to expect that their physicians will
not increase their exposure to the risk of contracting an infectious
disease, even minimally. If no risk exists, disclosure of the physician's
medical condition to his or her patients will serve no rational purpose;
if a risk does exist, the physician should not engage in the activity."
Council on Ethical and Judicial Affairs, Ethical Issues Involved in the
Growing AIDS Crisis, 259 J.A.M.A. 1360, 1361 (1988). See also
Comment, The AIDS Project: Creating a Public Health Policy, Rights

    11
        If monitoring were judged effective but would be economically

reasonable only if limited to HIV-positive providers, the State could require
disclosure of HIV status to enable the monitoring to be accomplished.

and Obligations of Health Care Workers, 48 Md. L. Rev. 106, 143
(1989).12

  The few reported cases involving government efforts to require

HIV testing confirm our view that the ADA issue will be resolved on the
strength of the medical justification for finding out a person's HIV
status. In Leckelt v. Board of Comm'rs, 714 F. Supp. 1377 (E.D. La.
1989), aff'd 909 F.2d 820 (5th Cir. 1990), the courts held that the firing
of a nurse, "some of [whose] duties provided potential opportunities for
HIV transmission to patients," because of his refusal to disclose the
results of his HIV test did not violate the Rehabilitation Act. In light of
legitimate medical concerns about risk to the patients (and to the nurse
himself), the nurse "was not 'otherwise qualified' to perform his job ...
because of his failure to comply with [the hospital's] policies for
monitoring infectious diseases, such as HIV." 909 F.2d at 830. See
also Local 1812, AFGE v. Department of State, 662 F. Supp. 50
(D.D.C. 1987) (rejecting Rehabilitation Act challenge to HIV testing of
Foreign Service officers because HIV-positive officers who could not get
adequate medical care overseas were not "otherwise qualified" for the
jobs).

  To summarize, "[w]hether it can be established that the

performance of invasive procedures or other activities within health care
settings creates a significant risk of transmission to others is a question
that will ultimately turn on expert medical testimony." Hermann &
Schurgin, Legal Aspects of AIDS §12:38, at 12-47 (1991). If medical
evidence supports the existence of an unacceptable degree of risk, the
State may abate the risk without breach of its duties under the
Rehabilitation Act and the ADA. If not, any differential treatment of
HIV-positive health care providers would be unlawful.

B. Fourth Amendment

  Any State requirement that forces individuals to obtain HIV tests

or else forfeit an employment opportunity would be subject to review
under the Fourth Amendment's proscription of "unreasonable searches
and seizures." See National Treasury Employees Union v. Von Raab,
489 U.S. 656 (1989). In our opinion, however, a State requirement
involving HIV testing that complies with the Rehabilitation Act and the

    12
           If restrictions were medically justified in some circumstances,

expertise is required to identify the exact circumstances. For example, although
surgery is generally the most invasive of procedures, increasing use of
laparoscopy renders some types of surgery no more susceptible to an exchange
of blood than many nonsurgical procedures. See Guiding the Knife, The
Economist, May 4, 1991, at 83.

ADA would also be constitutional, and for the same reason: The
requirement would reflect a reasonable medical judgment about the steps
necessary for patient protection.

  The balancing test invoked by the Supreme Court for deciding

Fourth Amendment claims of this kind would require, as the
Rehabilitation Act and the ADA do, the State to demonstrate the medical
justification for its indirect testing requirement. If that justification
existed, the State's interest in protecting the health of those in its
facilities would outweigh the privacy claims of health care providers and
would therefore be constitutionally "reasonable." In Leckelt v. Board
of Comm'rs, 909 F.2d at 832-33, the same medical rationale that
supported an HIV testing requirement under the Rehabilitation Act also
sustained it under the Fourth Amendment. See also Local 1812, AFGE
v. Department of State, 662 F. Supp. at 53. Cf. Plowman v.
Department of the Army, 698 F. Supp. 627, 636 (E.D. Va. 1988)
("medical need to know" rendered HIV test of hospital patient
constitutionally reasonable).

  Another case illustrates the constitutional consequence of

insufficient medical justification. In Glover v. Eastern Nebraska
Community Office of Retardation, 686 F. Supp. 243 (D. Neb. 1988),
aff'd 867 F.2d 461 (8th Cir.), cert. denied 110 S. Ct. 321 (1989), the
state employer sought to test all patient care workers at a state facility
for HIV and other communicable diseases, claiming that the facility's
patients were at risk. The courts found this patient care justification to
be unsupported by the medical evidence: "[F]rom a medical viewpoint,
this policy is not necessary to protect clients from any medical risks."
686 F. Supp. at 249. See also 867 F.2d at 464. Apparently the workers
in question did not routinely engage in invasive procedures, and the
district court characterized the risk of HIV transmission as "minuscule,
trivial, extremely low, extraordinarily low, theoretical, and approaches
zero." 686 F. Supp. at 251. Hence, the testing requirement was
unreasonable under the Fourth Amendment.

  In short, "employee expectations of privacy against mandatory

HIV testing depend on careful judicial application of the medical
authorities to the fourth amendment and Rehabilitation Act." Note,
Mandatory Testing of Public Employees for the Human
Immunodeficiency Virus: The Fourth Amendment and Medical
Reasonableness, 90 Col. L. Rev. 720, 743 (1990).

                                III

                           State Law

A. Informed Consent For Testing

  Under §18-336(b) of the Health-General Article ("HG" Article),

health care providers are under a duty to obtain informed consent prior
to testing a person's blood for the presence of HIV:

             Before obtaining a blood sample from an
       individual for the purpose of testing the blood for
       the presence of HIV infection, a health care
       provider shall:

             (1) Obtain written informed consent from
       the individual on a uniform HIV informed
       consent form that the Department [of Health and
       Mental Hygiene] shall develop consistent with the
       requirements of the Department as established by
       regulations adopted by the Department; and

            (2) Provide the individual with pretest
       counseling ....

The phrase "informed consent" invokes the physician's well-established
duty to provide the patient with enough information about the benefits
and risks of the procedure to render the patient's consent to the
procedure an informed one. See Sard v. Hardy, 281 Md. 432, 379 A.2d
1014 (1977).

  Nothing in HG §18-336 precludes an employer from requiring an

employee to be tested so that the employer can learn the employee's
HIV status.13 Nor does anything in this statute preclude the State from
imposing a testing requirement on those with whom it contracts to
provide health care services.

B. Work-Related Medical Inquiries

  Article 100, §95A of the Maryland Code limits an employer's

ability to obtain medical information about an applicant for employment:
"An employer may not require an applicant to answer any questions,

    13
       Some states have expressly prohibited such employer requirements.

See, e.g., Cal. Health & Safety Code §199.21.

written or oral, pertaining to any physical, psychological, or psychiatric
illness, disability, handicap or treatment which does not bear a direct,
material, and timely relationship to the applicant's fitness or capacity to
properly perform the activities or responsibilities of the desired
position." Since HIV infection is a "physical ... illness [or] disability,"
this section would prohibit an employer who hires health care providers
from asking about their HIV status unless that information was relevant
to the provider's job responsibilities.14

  For the reasons discussed in Part II above, a State contractor's

inquiry about HIV status would bear no relationship "to the applicant's
fitness or capacity to properly perform the activities or responsibilities
of the desired position" if the position did not entail routine performance
of invasive procedures. If, on the other hand, the applicant was
applying for a job involving invasive procedures, and if medical
evidence justified special requirements for HIV-positive providers, this
statute would not prohibit the employer's requiring disclosure of HIV
status.

C. Human Relations Commission Act

  Under Article 49B, §16(a)(1), an employer may not "discriminate

against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's ...
physical or mental handicap unrelated in nature and extent so as to
reasonably preclude the performance of the employment."15 HIV
infection is a "handicap," according to the Human Relations
Commission. COMAR 14.03.02.02.

  The Commission's regulations recognize that a person is not

qualified to do a job if the person would "creat[e] a dangerous condition
to life or health of self or others." COMAR 14.03.02.05A(2). More
generally, an employer may "take action otherwise prohibited under
these regulations when mental and physical ability is a bona fide
occupational qualification reasonably necessary to the normal operation
of the particular business." COMAR 14.03.02.05F(1).

    14
       This provision is inapplicable to the State in its capacity as employer.

See, e.g., Unnamed Physician v. Commission on Medical Discipline, 285 Md. 1,
12, 400 A.2d 396 (1979); Harden v. Mass Transit Admin., 277 Md. 399, 408,
354 A.2d 817 (1976). Cf. Article 100, §95(a)(2) (term "employer" defined to
include the State for purposes of that section only).
15
This provision applies to employers with 15 or more employees.
Article 49B, §15(b). The term "physical or mental handicap" is defined in §15(g).

  In our view, the Human Relations Commission Act applies to the

problem of HIV testing of health care providers, and consequent
restrictions on those who test positive, in the same way that federal law
does: These steps can be justified based on sufficient medical evidence
of patient risk, but not otherwise. See generally Mass Transit
Administration v. Commission on Human Relations, 68 Md. App. 703,
716, 515 A.2d 781 (1986) (cases interpreting Rehabilitation Act "looked
to ... for guidance in interpreting the Maryland Act"); Baltimore & Ohio
R.R. Co. v. Bowen, 60 Md. App. 299, 312, 482 A.2d 921 (1984)
(Rehabilitation Act cases cited regarding burden of producing evidence
and burden of persuasion).16

D. Code of Fair Practices

  The Code of Fair Practices, Executive Order 01.01.1987.20,

contains the following provision: "Every State contract for ... services
shall contain clauses which prohibit discrimination on account of ...
physical or mental handicap ...." Article VI(A). The term
"discrimination" is not defined or elaborated. In the absence of evidence
that the term was meant to have a broader connotation than the term as
used in the federal and State laws discussed above, we conclude that if
an action would not violate these laws, it would not be an act of
prohibited discrimination under the Code of Fair Practices.

                                IV

                           Conclusion

  In summary, it is our opinion that:

  1.    The State may not require a contractor to restrict the

activities of HIV-positive health care providers who do not regularly
engage in invasive procedures, nor may the State require the contractor
to ascertain the HIV status of providers who do not regularly engage in
invasive procedures.

  2.   If public health officials reasonably determine that the

protection of patients against a significant risk of transmission of HIV

    16
       Although we are addressing the Human Relations Commission Act in

order to provide you with a complete response, we recognize that interpretation
of the act is primarily the prerogative of the Commission, subject to judicial
review. See Commission on Human Relations v. Mass Transit Admin., 294 Md.
225, 233, 449 A.2d 385 (1982).

so requires, the State may require its contractor to impose special
requirements or limitations on HIV-positive health care providers who
regularly engage in invasive procedures and may require the contractor
to ascertain who those providers are.

                                      J. Joseph Curran, Jr.
                                      Attorney General

                                      Jack Schwartz
                                      Chief Counsel
                                      Opinions & Advice