HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/LOC-1812.ASC

Text File | 1993-01-14 | 19KB | 363 lines

/* This case is reported in 662 F.Supp. 50 (D.Wash. DC 1987).
The State Department passed a regulation requiring that employees
who were permitted to travel abroad take an HIV test, with those
testing positive being limited to being posted to places where
medical facilities are deemed adequate to their conditions. The
Court upholds this requirement in part because no employees are
terminated or reduced in grade due to the positive test, although
the argument can be made that a foreign service officer who
cannot go abroad has a limited career potential. */

LOCAL 1812, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
Plaintiff,

v.

UNITED STATES DEPARTMENT OF STATE, et al., Defendants.

United States District Court, District of Columbia.

April 22, 1987.



MEMORANDUM

GESELL, District Judge.

This case arises from the Department of State's recent decision
to expand its employee medical fitness program for all Foreign
Service employees seeking to qualify or who have qualified for
worldwide service abroad, by including mandatory testing of blood
for the presence of the Human Immunodeficiency  Virus  ("HIV"),
the cause of Acquired Immune Deficiency Syndrome ("AIDS")  and
related  diseases. Plaintiff union, which represents some of the
employees subject to the program, has moved for a preliminary
injunction to bar this blood testing. Numerous declarations and
other material have been filed and the issues have been
elaborately briefed and argued.

Pursuant to the Foreign Service Act of 1946, as amended by the
Foreign Service Act of 1980, codified at 22 U.S.C.  3901-4026
(1982), the Department of State has established "a health care
program to promote and maintain the physical and mental health"
of Foreign Service employees and their families.  22 U.S.C.
4084(a).  Authority for requiring medical examinations is found
in several sources.  The statute provides specifically that the
Department of State "shall prescribe, as appropriate, written,
oral, physical, foreign language, and other examinations for
appointment to the Service ..." 22 U.S.C.   3941(b). Also, the
health care program established by the Secretary "may include (1)
medical examinations for applicants for employment, [and] (2)
medical examinations and inoculations or vaccinations, and other
preventive and remedial care and services as necessary, for
members of the Service and employees of the Department who are
citizens of the United States and for members of their families
..." 22 U.S.C.  4084(b).

Medical concerns addressed by the examinations focus
significantly on the commitment of Foreign Service employees to
undertake worldwide duty.  Congress has provided that "[c]areer
members of the Service shall be obligated to serve abroad and
shall be expected to serve abroad for substantial portions of
their careers."  22 U.S.C.  3984(a). The legislative history of
this provision stresses that "availability for worldwide
assignment must be clearly expressed and understood as a basic
requirement for admission to the Foreign Service as well as for
retention and promotion in the Foreign Service throughout the
individual's career."  H.R.Rep. No. 96-992, 96th Cong., 2d Sess.,
pt. 1, at 9 (1980); see also S.Rep. No. 96-913, 96th Cong., 2d
Sess., at 46 (1980), U.S.Code Cong. & Admin.News 1980, pp. 4419,
4463.

The Foreign Service employee medical fitness program is outlined
in Volume 3, Section 680 of the Foreign Affairs Manual. It
applies to all U.S. citizen Foreign Service employees and their
eligible dependents, including spouses and unmarried children
under age 21.  The program implements the requirement that
Foreign Service candidates and their dependents pass, prior to
appointment, a comprehensive medical examination designed "to
determine the presence of any physical, neurological, or mental
condition of such a nature as to make it unlikely that they would
be able to function on a worldwide basis."  22 C.F.R.  11.1(e)(2)
(1986).  Current Foreign Services employees and dependents must
repeat the examination roughly every two to three years
principally upon change of tour of duty and, if significant
health problems are detected, such employees are limited in
assignments abroad to posts where medical facilities are adequate
to care for their condition. The content of the examination is
frequently changed to reflect evolving medical practice and
experience.  The examination has long included a variety of
laboratory tests, including a number of tests done on blood
extracted from each person subject to the examination.  This
blood testing has provided a wide range of general information
about a  person's health and has also allowed detection of a
variety of diseases, both infectious and non-infectious, such as
hepatitis, syphilis, sickle cell anemia, and various forms of
cancer.

In November 1986, following a detailed task force study lasting
approximately a year and a half, the Department of State
announced its decision to add to its medical examination
procedure  the  challenged blood test designed to detect HIV
infection by measurement of the presence of antibodies to the
virus.  This reflected its determination that HIV-infected
persons are impaired and medically unfit for worldwide service,
because such persons would be put at serious hazard by service at
many posts where medical care is wholly inadequate to deal with
HIV-related infection, and health and sanitary conditions are
particularly hazardous to carriers of the virus. [footnote 1]  As
with other serious medical conditions, a finding of medical
unfitness due to HIV infection accordingly bars new applicants
from employment with the Foreign Service. Current employees and
their families, on the other hand, are given limited medical
clearances.  The Department of State has determined that HIV-
infected individuals showing no symptoms of related disease and
without significant immune systemdysfunction, as determined  by
further blood tests, are eligible for placement in the United
States and 47 posts in 19 foreign countries which do not present
unusual health hazards and where adequate medical care is
believed to be available. Individuals in more serious condition
are limited to United States service. No employee will be
separated, and benefits will not be affected, by a finding of HIV
infection.

The Department of State presented substantial medical evidence
supporting its view that HIV-infected individuals placed on
worldwide service status would be at significant and
progressively serious medical risk. Although there is much still
to be learned about HIV infection, it is clear that a substantial
percentage of persons carrying the virus-and perhaps a majority-
will probably develop any of a wide variety of medical problems,
principally AIDS or the less severe AIDS-related complex,
[footnote 22] in a relatively short period from date of
infection. There is, moreover, credible medical evidence that HIV-
infected individuals placed in countries with levels of
infectious disease substantially higher than in the United States
will experience enhanced stimulation of their immune systems,
through either exposure to disease or to required live-virus
vaccines, which can hasten development of AIDS or AIDS-related
complex.

The Department of State has also taken cognizance of the fact
that because of the complexity of the associated diseases, a
physician unfamiliar with HIV infection and unaware that a
patient is infected may misdiagnose symptoms of HIV infection,
thus delaying beneficial care; physicians relied on at many
foreign posts are less familiar with HIV-related diseases than
those in the United States and certain Western European nations.
[footnote 3]  HIV-infected individuals also benefit from the
availability of adequate emergency care should they suddenly
manifest life-threatening symptoms.  Moreover, symptomless HIV-
infected individuals derive at least some medical benefit from
regular medical monitoring of their condition.  Thus, the absence
of adequate medical knowledge and care at many posts greatly
enhances the medical risks associated with assigning HIV-infected
employees to these areas. [footnote 4]

[1]  Plaintiff raises two major objections to blood testing for
HIV infection which require comment. [footnote 5]

First, it asserts that the testing constitutes an unreasonable
search in violation of the Fourth Amendment to the Constitution
and a severe privacy intrusion in violation of the substantive
due process component of the Fifth Amendment.  These arguments
are closely related in their focus on the reasonableness of the
testing program, and they draw on the view held by many experts
that mandatory testing has little, if any, impact on the spread
of HIV-related disease and the obvious fact that given the
present intense national concern with AIDS there are often
damaging psychological reactions caused when one learns he or she
is carrying the virus which may trigger it, particularly when one
has not voluntarily sought a blood test.

[2]  However, the testing program challenged in this case is not
primarily directed at stopping the spread of HIV infection.
Rather, its focus is on fitness for duty in a specialized
government agency.  The testing involves only an additional
examination of a blood sample that the person undergoing an
examination must provide as a matter of course under procedures
already established for a number of years.  On the evidence
presently before the Court, inclusion of the test for HIV
infection appears rational and closely related to fitness for
duty. The Department of State has acted to ensure tests are
conducted in a reasonable manner to protect privacy.  While
obviously psychological concerns of a deep personal nature may
arise when a person is informed of HIV infection following a
test, these concerns do not themselves raise constitutional
privacy issues, especially as other serious diseases-notably
cancer-that may be revealed by blood tests undoubtedly present
similar concerns.

The Court must conclude on the present record that the likelihood
plaintiff will prevail on the merits of its constitutional claim
is insufficient to justify a preliminary injunction against the
testing program.

Second, plaintiff asserts that the testing program violates
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.  791-
796i (1982),  which  prohibits  discrimination against
handicapped persons, see 29 U.S.C.  794.  The Foreign Service is
made subject to the Rehabilitation Act by 22 U.S.C.  3905(e)(4).

Persons who carry HIV may be deemed handicapped in one or both of
two ways. It is enough if they are perceived to be handicapped,
see 29 U.S.C.  706(7)(B)(iii).  In the present period of
speculation and concern over the incurable and fatal nature of
AIDS there is no doubt that a known carrier of the virus which
causes it is perceived to be handicapped.  Plaintiff relies
solely on this aspect, contending that persons may under normal
circumstances in the United States carry HIV for years, be com
pletely well, and perform efficiently. Were this the sum total of
the problem under the circumstances of this case, an injunction
might be required.  The Department of State could not justify
testing for the virus if its presence did not impact on job
qualifications for worldwide Foreign Service duty.

However, the Department of State, while disputing that HIV-
infected persons are perceived as handicapped, concedes
applicability of the Rehabilitation Act on the ground that the
great majority of HIV carriers are physically impaired and handi
capped only for that reason, under 29 U.S.C.  706(7)(B)(i), due
to measurable deficiencies in their immune systems even where
disease symptoms have not yet developed.

Plaintiff vigorously disputes the Department's conclusion that
symptomless HIV carriers are in any way impaired, [footnote 6]
or that at the great majority of its Foreign Service posts the
functions of such carriers would be likely to be impaired through
greater risk of infection or less competent medical care.
Plaintiff's views find little support in the record. The Court is
satisfied that the Department of State has demonstrated serious
ground for concern about the additional risk that disease will
develop from placement of HIV carriers in many foreign posts and
that medical care at such posts will be inadequate to diagnose
and treat medical problems that may develop in any infected
person.

[3,4] The Rehabilitation Act only protects an "otherwise
qualified individual" from  suffering  employment  limitations
"solely by reason of his handicap," 29 U.S.C.  794. It does not
appear from the present record that HIV-infected persons are
"otherwise qualified" for worldwide Foreign Service duty.  The
Rehabilitation Act does not require the Department of State to
ignore the obvious relevance of HIV infection to its
qualification of Foreign Service employees for long terms of
worldwide duty abroad.  See, e.g., Strathie v. Department of
Transportation, 716 F.2d 227, 23~31 (3rd Cir.1983); Doe v. New
York University, 666 F.2d 761, 775 (2nd Cir.1981).  Furthermore,
the record is devoid of any purpose or intention to discriminate.
The present record discloses sufficient prospect of serious harm
to the Department of State's mission and to its employees to
warrant continued testing and consequent limitation on assignment
or hiring.  Again, the prospects of success on the merits are
slight. Every effort is being made to accommodate existing
employees found to carry the virus and the balance of the
equities and the public interest warrant continuation of the
challenged testing program until final resolution of the issues.
[footnote 7]

Moreover,  the Court must recognize plaintiff's apparent lack of
standing to claim the full relief requested by its complaint.
Plaintiff does not speak for all Foreign Service employees or
many potential applicants. No current Foreign Service employee or
family member has joined this suit and testing has so far
disclosed very few HIV-infected employees.  Thus the Court must
take cognizance of the possibility that plaintiff may lack
organizational standing to represent its members under the
standards developed by the Supreme Court in Hunt v. Washington
State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434,
53 L.Ed.2d 383 (1977), and International Union, UAW v. Brock, 477
U.S. 274, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986), recognizing the
highly individualized nature of the problem and possible
conflicts between Foreign Service employees or within their
families. Finally, the Court is not persuaded that a change in
the status quo is in the public interest.

Plaintiff's motion for a preliminary injunction is denied.



FOOTNOTES:

1.   0ther grounds for the Department's decision, not
sufficiently developed to be controlling on the motion, were to
protect against the risk of HIV transmission through emergency
blood transfusions at foreign posts and to prevent damage to
American foreign policy that will result in some circumstances
from the identification of a Foreign Service employee as an AIDS
patient or symptomless carrier of the virus, given the attitude
in some countries that Americans may be the principal channel for
the spread of AIDS.

2.   AIDS is a clinical definition developed in 1982 by the
Public Health Service's Centers for Disease Control to allow
monitoring of conditions typically associated with severe
breakdown of immunologic defenses against viral, bacterial and
parasitic infections, subsequently found to be caused by HIV.
Clinically the term includes "opportunistic" infections that
develop because of immunologic breakdown and seldom endanger a
person with a healthy immune system, such as Pneumocystis carinii
pneumonia, tuberculosis, and infections of the central nervous
system such as toxoplasmosis; as well as certain cancers, notably
Kaposi's sarcoma and non-Hodgkin's lymphomas. A variety of other
serious conditions related to AIDS but not meeting the clinical
definition of the disease are described as  involving AIDS-
related complex. These include persistent lymph node enlargement,
fatigue, persistent fever, weight loss, diarrhea. and certain
neurological problems, including dementia.

3.   Because of the breadth of the diseases associated with HIV
infection and the ambiguity of their early symptoms in at least
some cases, misdiagnosis appears to be a substantial danger. Of
the ten federal employees serving overseas who were diagnosed
during the past two years as having AIDS, only one was correctly
diagnosed at a foreign post, which had relatively sophisticated
medical facilities. Two cases were seriously misdiagnosed at
foreign posts.

4.   The legislative history of the Foreign Service Act of 1980
confirms the Department of State's concerns.  The House report
described conditions at 46 "hardship posts" in Africa, for exam
ple, as follows: "[h]igh heat and humidity, a hostile natural
environment, unsanitary conditions, tropical diseases such as
malaria, hepatitis, cholera, and meningitis are endemic to many
of these posts.  Inadequate hospitals, a shortage of doctors or
nurses, and few flights in and out of the capital city, which are
necessary in cases of medical emergency, combine to present
considerable health hazards to individuals serving at these
posts."  H.R.Rep. No. 96 992, 96th Cong., 2d Sess, pt. 1, at 7
(1980).

5.   Plaintiff also claims the program should have been proposed
and debated within the elaborate rulemaking procedures of the
Administrative Procedure Act, detailed at 5 U.S.C.  553 (1982).
The inclusion of an additional blood test within an established
intra-agency medical and health program cannot remotely be
characterized as involving a legislative rule requiring such
procedures.  Plaintiff's further claim that the program is
arbitrary and capricious, in violation of 5 U.S.C.  706(2)(A)
(1982), hinges on the merits of the two major objections to the
program.

6.   The issue of whether symptomless HIV-infected persons are
impaired within the meaning of the Rehabilitation Act was noted
but not decided by the Supreme Court in School Bd. of Nassau
County v. Arline, - U.S. -, 107 S.Ct. 1123, 1128 n. 7, 94 L.Ed.2d
307 (1987).

7.   Any further accommodation would require the Department of
State fundamentally to alter its medical fitness program's
allowance of service only at posts where the Department
reasonably believes medical care is adequate to an employee's
situation. or to incur an undue financial burden in upgrading
medical care services at all foreign posts to deal with the rela
tively rare problems associated with HIV infection. The
Department of State's obligation reasonably to accommodate
handicapped employees does not extend this far. See School Bd. of
Nassau County v. Arline, - U.S.-, 107 S.Ct. 1123, 1129 n. 10, 94
L.Ed.2d 307 (1987).