HIV in AmericaPage 7 of 9

5. Legal and Ethical Issues

Did you know. . .

In the case of HIV or AIDS, reportable means that providers who diagnose a person must submit a confidential case report to the local health jurisdiction within 3 days.

HIV and AIDS Are Reportable Conditions

Reporting of HIV and AIDS cases assists local and state officials in tracking the epidemic. It also allows for effective planning and intervention to be provided in the effort to reduce the transmission of HIV to other people.

Anonymous Tests and Reporting

Positive HIV results obtained through anonymous testing are not reportable. However, once a patient with positive results seeks medical care for conditions related to HIV or AIDS, the provider is required to report the case to the local health department.

Spousal Notification

Federal Public Law 104-146 (1996) requires that states take action to require that a “good faith effort” be made to notify all spouses of HIV-infected people. A spouse is defined as anyone who is or has been the marriage partner of an HIV-infected individual within 10 years prior to the HIV diagnosis.

Notification means that individuals testing positive will be counseled about the importance of notifying spouses and partners and will be given the choice to notify, to allow the healthcare provider to notify, or to refer to the local health jurisdiction for assistance in notifying the spouse.


All medical records are confidential and must be maintained in a manner that protects that confidentiality. Confidentiality of medical information means that a person’s medical information (including HIV testing and HIV results) may not be disclosed to anyone unless the individual signs a release-of-information form. However, there are exceptions to this. Medical information can be disclosed under certain circumstances, including:

  • When it is given from one healthcare provider to another healthcare provider for related ongoing medical care of the patient
  • In a life or death emergency
  • To a third-party payer (insurance provider)
  • In reporting notifiable conditions to the local health jurisdiction or the Department of Health (DOH)

Violation of the above-mentioned laws is a misdemeanor and may result in civil liability actions for reckless or intentional disclosure up to $10,000 or actual damages, whichever is greater. It is the responsibility of the county’s health officer to investigate potential breaches of confidentiality of HIV identifying information and report them to the DOH.

Additional Confidentiality Protections

Some areas of the medical record have additional confidentiality requirements because disclosure of the information to the wrong person or agency could mean additional harm to the patient. It has been determined that there exists a level of prejudice, fear, and discrimination directed at people with these medical conditions. Therefore, there is a legal balance between civil protection and information access.

Disability and Discrimination

People with AIDS and HIV are also protected by federal law under Title II of the Americans with Disability Act of 1990 (ADA) and Section 504 of the Federal Rehabilitation Act of 1973, as amended. People with HIV infection and/or AIDS who feel discriminated against on the basis of their disease may file a complaint with the Office for Civil Rights (OCR) of the U.S. Department of Health and Human Services, or their own state rights commission.


Federal and state jurisdictions differ in approaches to disability. They do not necessarily cover all employers. State laws must be reviewed for state-specific mandates.

Discrimination-Free Environment

Employers are required to provide and maintain a working environment free of discrimination. They must assure that no harassment, intimidation, or adverse action or personnel distinction is made in terms and conditions of employment based on HIV status.

If a worksite situation develops that poses the threat of discrimination, it is best practice for the employer to provide education and supervision to employees in order to end harassment, the use of slurs, or intimidation. An employer should promptly investigate allegations of discrimination, take appropriate action, and not retaliate against the person who complained.

If someone is in a situation in which they feel they are being discriminated against, they should first document the discrimination, speak with their supervisor, and follow the entity’s internal process to file a discrimination charge. However, it is not necessary to follow an internal grievance process. If these remedies do not work, a person should contact the Office for Civil Rights within their own state. An aggrieved person can also file directly in state court. A complaint must be filed within 180 days of the alleged discriminatory incident.

Reasonable Accommodation

Employers are responsible for providing reasonable worksite accommodations that will enable a qualified disabled employee or job applicant to perform the essential tasks of the particular job.

Reasonable accommodation means modifications to a worksite or job, in the context of the entire employer’s operation, such as:

  • Providing special equipment
  • Altering the work environment
  • Allowing flex-time
  • Providing frequent rest breaks
  • Allowing the person to work at home (telecommute)
  • Restructuring the job

An employee with a disability must self-identify and request a reasonable accommodation. The employer must engage in an interactive process with the requestor. The reasonable accommodation grant may not be exactly the same one as requested by the employee, but one that is equally effective. The employer does not have to change the essential nature of its work, or engage in undue hardship or heavy administrative burdens. The essential functions of the job must be accomplished, with or without reasonable accommodations.

Online Resource

Americans with Disabilities Act and Persons with HIV/AIDS

Potentially Prejudicial Information

When a person goes for a job interview or is hired, it is best practice for an employer to refrain from asking questions directed at the perception or presence of HIV infection or AIDS unless the employer has obtained a “bona fide occupational qualification” (BFOQ) from their state.

It is best practice for an employer to refrain from asking “lifestyle” questions, such as inquiring about an applicant’s religion, living arrangements, sexual orientation, or gender identity. Exceptions to the above include people applying for U.S. citizenship under federal law, which supersedes state law.

Behaviors Endangering the Public Health

Health Officers

The local health officer is the physician hired to direct the operations of the local county’s health department or health district. Included in the broad responsibilities of the health officer is the authority to:

  • Interview people infected with an STD
  • Notify sexual or needle-sharing partners of exposure to disease
  • Order people suspected of being infected to receive examination, testing, counseling, or treatment
  • Issue orders to cease and desist from specific conduct that endangers the public health of others

Court enforcement of these orders can be sought. State law delineates the standards that must be met before action by the health officer may be taken.

Reporting Non-Compliance

Healthcare providers are required to provide instruction on infection control measures to the patient who is diagnosed with a communicable disease. They are also required to report certain information to the local health officer where there are either impediments to or refusal to comply with prescribed infection control measures.

When a healthcare provider has knowledge that a specific patient is failing to comply with prescribed infection control measures (acquisition of a new STD, sex without disclosure of HIV status to sexual partners, failure to disclose HIV status to needle-sharing partners, donating or selling HIV-infected blood), they should contact the local public health officer to discuss the circumstances of the case and to determine whether the name of the person should be reported for investigation and followup.

Case Investigation

The health officer or other authorized representative will investigate the case if credible evidence exists that an HIV-infected person is engaging in conduct endangering the public health. Other laws and regulations concern endangering behaviors as well as occupational exposures. These may be specific to professions and to the jurisdictions of public health officers.

Test Your Learning

Positive HIV test results obtained through anonymous testing are not reportable to the local health department until the infected person seeks healthcare for conditions related to HIV or AIDS:

  1. True
  2. False

HIV testing and results may be disclosed:

  1. In reporting notifiable conditions to the local health jurisdiction or the DOH.
  2. Using “a good faith effort” to notify all spouses with or without the consent of the infected person.
  3. Only to the manager of an HIV-infected person in the workplace.
  4. When positive HIV results are obtained through anonymous testing.

Answers: a, a