Tuberculosis control. Will our legal system guard our health and will the ADA hamper our control efforts?

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Tuberculosis control Cynthia A. Carlon

a

a

Third‐year law student , Southern Illinois University School of Law , Lesar Law Building, Carbondale, IL, 62901 Published online: 23 Jul 2009.

To cite this article: Cynthia A. Carlon (1992) Tuberculosis control, Journal of Legal Medicine, 13:4, 563-587, DOI: 10.1080/01947649209510896 To link to this article: http://dx.doi.org/10.1080/01947649209510896

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The Journal of Legal Medicine, 13:563-587 Copyright © 1992 by Hemisphere Publishing Corporation

TUBERCULOSIS CONTROL Downloaded by [Queensland University of Technology] at 22:13 01 November 2014

WILL OUR LEGAL SYSTEM GUARD OUR HEALTH AND WILL THE ADA HAMPER OUR CONTROL EFFORTS? Cynthia A. Carlon*

INTRODUCTION A little more than a generation ago the White Plague1 of tuberculosis (TB) claimed as many as 100,000 American lives a year.2 A slow wasting death and ostracism by friends and neighbors greeted the victim. In fear of the epidemic, the states took vigorous action to control TB, vesting public health officers with a variety of powerful tools to identify and isolate the individuals who could pose a threat to the public health.3 A public health worker in the 1940s expressed the goal of TB elimination: "Find all the cases of tuberculosis and isolate them until they are dead or non-infectious and there will be no more tuberculosis."4 Protecting the health of the community was of paramount importance, and officials paid little attention to individual liberties.5 Such firm measures nearly eradicated TB in the United States.6 Unfortunately, TB is back. Between 1985 and 1991, the number of TB cases began to rise, and 39,000 more cases were reported than would have been expected.7 In 1992, the Centers for Disease Control reported * Third-year law student at Southern Illinois University School of Law. Address correspondence to Ms. Carlon at Southern Illinois University School of Law, Lesar Law Building, Carbondale, IL 62901. 1 Sherman, TB Hysteria, Repeated?, NAT'L L . J., June 29, 1992, at 1. 2 Frank, Doctors Fear New Wave of Tuberculosis Hysteria, Reuters, Jan. 30, 1992, at 16. 3 Sherman, supra note 1, at 1. 4

ILLINOIS LEGISLATIVE COUNCIL, CONTROL OF TUBERCULOSIS BY THE STATE 1 (Pub. 65, Dec. 1944) (quoting PAST AND PRESENT TRENDS IN THE TUBERCULOSIS MOVEMENT: A SYMPOSIUM OF HISTORY PAPERS PRESENTED AT THE 38TH ANNUAL MEETING IN PHILADELPHIA OF THE NATIONAL TUBERCULOSIS ASSOCIATION, at 42).

5 6 7

Sherman, supra note 1, at 35. Cowley, Leonard, & Hager, Tuberculosis: A Deadly Return, NEWSWEEK, Mar. 16, 1992, at 55. NATIONAL MDR-TB TASK FORCE, CENTERS FOR DISEASE CONTROL, U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES, NATIONAL ACTION PLAN TO COMBAT MULTIDRUG-RESISTANT TUBERCULOSIS 1

(Apr. 1992).

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that seven prison inmates and a guard died of TB in a single prison in New York.8 As a result of the resurgence of TB, the challenge of controlling TB is before us again today. "People have treated this as a great surprise, but it's a predictable result of abandoning public health measures that were working."9 The paranoia of the early half of this century, when TB was justly feared but greatly misunderstood,10 should not dominate our response now. We need to take strong measures to keep TB from reemerging as a major health threat. This commentary explores some legal issues facing public health officials in controlling TB today. Section I describes the nature of TB, profiles the dangers posed by drug resistant strains of TB, and outlines the role of the public health officer. Section II sets forth three measures of TB control and the goal of each. Section i n examines the Americans with Disabilities Act. Section IV analyzes legislative changes to authorize successful TB control and discusses potential barriers to successful control raised by the Americans with Disabilities Act.

I. TUBERCULOSIS AND THE ROLE OF THE PUBLIC HEALTH OFFICER State and local public health officers have responsibility for the control of tuberculosis.11 State statutes are the primary authorization for actions that health officers may take.12 Understanding TB control requires a working knowledge of how the disease is spread, when it is contagious, how to determine if it is contagious, and in what settings the risk of contagion is significant. Knowledge of the new and more dangerous strain of TB that is resistant to medications is similarly important. With an appreciation of the special dangers of this new strain of TB, we can decide what measures are needed for effective TB control. Also, an understanding of the role of the public health officer gives insight into the measures that are used in the control of communicable disease. A. Tuberculosis: The Disease Process Tuberculosis, unlike AIDS and other intimate contact diseases, is a health threat to the general population because it may be spread by the mere act of breathing.13 TB is also different from AIDS because it is 8 9

10 11

12 13

Daily Egyptian, Carbondale, IL, July 17, 1992, at 2. Cowley, Leonard, & Hager, supra note 6, at 55 (quoting Barry Bloom, Weinstock Professor of Microbiology and Immunology at New York's Albert Einstein College of Medicine). Frank, supra note 2, at 16 (quoting Lung Association president-elect Lee Reichman). F. GRAD, PUBLIC HEALTH LAW MANUAL 15 (2d ed. 1990).

Id. NATIONAL ACTION PLAN, supra note 7, at 7.

TUBERCULOSIS CONTROL

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largely curable.14 TB is caused by the bacterium mycobacterium tuberculosis. "When people with TB of the lungs cough, they produce tiny droplet nuclei that contain TB bacteria, which can remain suspended in the air for prolonged periods of time. Anyone who breathes air that contains these droplet nuclei can become infected with TB."15 Prolonged contact in an enclosed area with an infected person creates a significant risk of exposure.16 The standard public health estimate is that it takes six months of eight-hour-a-day exposure to the airborne mycobacteria to get TB from an individual with an active case of the disease. But there have certainly been extremes in both directions, ranging from brief casual exposures that resulted in disease all the way to years of intense hospital-ward exposure without even becoming infected.17

TB infection can remain dormant in the body for years.18 "Latent tuberculosis infection" is the term for the dormant phase.19 In this latent stage the person is not contagious.20 About five percent of Americans, 1015 million, may have latent tuberculosis infection.21 A positive TB test is the usual means of determining if a person has latent TB infection.22 The Centers for Disease Control recommends screening tests for those in high risk groups.23 Of those who test positive for TB, only about 10% will become actively infected at some point in their lives.24 Symptoms of contagion (clinical infection) are a very high fever; night sweats; a prolonged, productive cough (especially if blood is pro-

14

Reichman, A Looming Public Health Nightmare, York, N.Y., 1992).

Lungs at Work (American Lung Association, New

15

NATIONAL ACTION P L A N , supra note 7 , at 7 .

16

Expert Says Tuberculosis Is on the Rise (CNN television broadcast, May 19, 1992). Garrett, Jobs that Carry a High Risk of TB, Newsday, Mar. 3 1 , 1992, at 6 1 .

17 18


19

Id. 20 Id. 21 Expert Says Tuberculosis Is on the Rise, supra note 16; NATIONAL ACTION PLAN, supra note 7 , at 7 . 22

DIVISION O F TUBERCULOSIS ELIMINATION, CENTERS FOR DISEASE C O N T R O L , U . S . DEPARTMENT O F HEALTH & H U M A N SERVICES, C O R E CURRICULUM ON TUBERCULOSIS 13 (Apr. 1991); NATIONAL

ACTION PLAN, supra note 7 , at 7. 23

These groups include persons with H I V infection; close contacts of known infectious tuberculosis cases; persons with other medical risk factors known to substantially increase the risk of tuberculosis once infection has occurred; . . . medically underserved low-income populations, including high-risk minorities, especially Blacks, Hispanics, and Native Americans; alcoholics and intravenous drug users; residents of long-term care facilities, such as correctional institutions and nursing homes; [and] certain other populations which have been identified locally as having an increased prevalence of tuberculosis, e . g . , health care workers in some areas.

24

Expert Says Tuberculosis Is on the Rise, supra note 16; NATIONAL ACTION PLAN, supra note 7 , at 7 .

C O R E CURRICULUM O N TUBERCULOSIS, supra note 2 2 , at 1 1 , 12.


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duced by coughing); general weight loss; and, fatigue.25 The lungs are the most frequent site of infection.26 The current infectious status of a person is determined by a sputum test that is either checked as a smear or cultured for the presence of bacteria.27 The Centers for Disease Control recommends performing a sputum test on patients with symptoms of active disease to confirm a positive skin test.28 After beginning proper medication, the patient is soon noncontagious.29 Three general groups of Americans are more at risk for TB than the rest of the population. The first group is people at increased risk due to more extensive exposure to TB,30 such as people who live or work in homeless shelters, jails, and prisons.31 The second group is people with decreased resistance to TB.32 This group includes those with HIV infection and AIDS.33 Other medical conditions also lead to increased risks of developing TB.34 Further, other conditions associated with poverty decrease resistance to TB and other infections.35 These risk factors increase both the likelihood of contracting active TB and the seriousness of the resulting infection.36 The third group is most at risk because these people have both a decreased resistance to TB and are at increased risk of exposure.37 An important example of this group is the homeless. Among the homeless, TB is 150 to 300 times as prevalent as among the general population.38 Many homeless people have compromised immune systems because of HIV infection or because of general debilitation from malnutrition or drug and 25

CORE CURRICULUM ON TUBERCULOSIS, supra note 22, at 2 1 ; Expert Says Tuberculosis Is on the Rise, supra note 16.

26


27

C O R E CURRICULUM ON TUBERCULOSIS, supra note 2 2 , at 2 1 .

28

Id. Id. at 9. Id. at 11, 12.

29 30 31

NATIONAL A C T I O N P L A N , supra note 7 , at 1.

32

C O R E CURRICULUM ON TUBERCULOSIS, supra note 2 2 , at 1 1 , 12.

33

NATIONAL ACTION P L A N , supra note 7 , at 1.

34

"Diabetes mellitus, silicosis, prolonged corticosteroid therapy, immunosuppressive therapy, hematologic and reticuloendothelial diseases, end-stage renal disease, intestinal bypass, postgastrectomy, chronic malabsorption syndromes, carcinomas of the oropharynx and upper gastrointestinal tract, [and being] 10 percent or more below ideal body weight" may all lead to increased risk of developing clinical tuberculosis once infection has occurred. CORE CURRICULUM ON TUBERCULOSIS, supra note 22, at 12.

35

Taravella, Drug Resistant

Tuberculosis

Comes Back as Growing

Threat to Healthcare

Workers,

M O D E R N HEALTHCARE, Mar. 16, 1992, at 16. 36

Four California Prison Employees Got TB from Inmates Report Says, 2 9 Gov't Empl. Rel. R e p . (BNA) No. 1443, at A-23 (Dec. 9 , 1991); NATIONAL ACTION PLAN, supra note 7 , at 8.

37

C O R E CURRICULUM ON TUBERCULOSIS, supra note 2 2 , at 1 1 , 12.

38

Lanphear & Snider, Myths of Tuberculosis, 33 J. OCCUPATIONAL M E D . 501 (1991) (citing Centers for Disease Control, Tuberculosis Control Among Homeless Populations, 36 MORBIDITY & MORTALITY WEEKLY REP. 257 (1987)).



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alcohol abuse and thus are more susceptible to TB.39 Other conditions that contribute to the risks of TB for the homeless are substandard or crowded housing, poverty, drug and alcohol abuse, and lifestyles that do not allow for effective therapy.40 These conditions are not unique to cities of today. A 1944 study of TB identified "urbanization, race, economic status, and adequacy of state and local programs of control" as the factors relating to the prevalence of the disease.41 The public health officer of decades ago faced many of the same conditions present today. B. Multidrug Resistant Tuberculosis: The New Challenge One challenge that public health officers of the past did not face is a change in the disease itself. Dangerous strains of TB have emerged that are resistant to standard treatments.42 Some new strains could become a bigger threat than AIDS: incurable, deadly, and transmissible without direct contact.43 Drug resistant strains develop when people with TB begin their medications, killing off the weaker strains of TB, but then fail to take the rest of their medication.44 The stronger, drug resistant bacteria then have a chance to multiply.45 When these patients become contagious, they spread the more dangerous, drug resistant form. One important step in treating TB is to place the patient on antibiotics. The standard antibiotics for treating TB are isoniazid and rifampin.46 When the full course of these antibiotics is not completed, the patient may develop a form of TB resistant to both these drugs. In one survey, 19% of patients had a form of TB resistant to both isoniazid and rifampin, and no effective drugs were found in some cases.47 Health care workers have difficulty not only in finding effective treatment but also in identifying the presence of a drug resistant strain. Skin testing does not reveal which strain of TB is present.48 Determining when the person is not contagious is complex. Previously, patients were pre-

39

40 41

43 44

45 46 47 48

Lanphear & Snider, supra note 3 8 , at 503; Altman, New York Moving to Limit TB Spread, N.Y. Times, Dec. 8, 1991, at 1; Frank, supra note 2 , at 16. Altman, supra note 3 9 , at 1; Frank, supra note 2 , at 16; Taravella, supra note 35, at 16. ILLINOIS LEGISLATIVE C O U N C I L , supra note 4 , at 1.

Sherman, supra note 1, at 3 3 . Id. "[Y]ears of poor compliance among T B patients unwilling to take their medicine for the full 6 to 18 months needed to kill the bugs has led to the gradual development of strains that are now resistant to as many as nine of the 11 most commonly tested drugs." Weiss, On the Track of "Killer" TB, 255 SCIENCE 148 (Jan. 10, 1992). Altman, supra note 3 9 ; Expert Says Tuberculosis Is on the Rise, supra note 16. Garrett, supra note 17; NATIONAL ACTION PLAN, supra note 7, at 8. Sherman, supra note 1, at 3 3 . Cowley, Leonard, & Hager, supra note 6, at 5 6 .


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sumed noncontagious after two weeks of antibiotic therapy. When the disease is resistant to the antibiotics being used, however, the patient is still contagious until a course of effective antibiotics is started.49 A prominent health official expressed concern over the difficulty of identifying contagious patients when the effectiveness of the antibiotic cannot be determined.50 Two methods can be used to determine the presence of a drug resistant strain of TB. One method is to observe the patient for improvement. The second method is to culture a sputum sample to see if the bacteria are sensitive to certain drugs.51 The trial and error method, of observing the patient, may be fine for some patients, but, for patients with increased risk factors, culturing a sputum sample is more accurate and is the recommended procedure.52 Once a multidrug resistant strain of TB has been identified, treatment with appropriate antibiotics is initiated.53 For most TB patients, the treatment consists of a six- to nine-month course of a combination of medications.54 However, antibiotic therapy for drug resistant TB may take 12 to 24 months.55 Patients who complete the course of medication have a cure rate of 95 to 98%.56 The fatality rate for drug resistant TB is 50 to 80%.57 For patients with decreased resistance to TB, the infection is even more serious. Patients with HIV infection or AIDS are particularly at risk.58 HIV positive individuals with multidrug resistant tuberculosis die of TB in up to 75% of the cases.59 This death rate is in stark contrast to the high cure rate for tuberculosis in general.60 For HIV or AIDS patients, the course of the disease is rapidly fatal.61 Some patients die within weeks, even before the infection can be cultured to see what drugs are effective.62

49 50

Garrett, supra note 17. Altaian, supra note 39 (quoting New York State epidemiologist, Dr. George DiFerdinando).

51


52

Id. Id. at 2 5 . Id. Expert Says Tuberculosis Is on the Rise, supra note 16. Id. Cowley, Leonard, & Hager, supra note 6, at 5 3 . Id. at 54, 5 5 . Frank, supra note 2 , at 16. Expert Says Tuberculosis Is on the Rise, supra note 16.

53 54 55 56 57 58 59 60 61

NATIONAL A C T I O N P L A N , supra note 7 , at 8.

62

In one study, 8 3 % of the HIV infected patients "died a median of 4 weeks after [the] diagnosis of T B . " It would have taken eight weeks to complete drug susceptibility testing. Fischl, Uttamchandani, Reyes, Cleary, Breeden, Biggler, Valdez, Cacciatore, Witte, Hopkins, Grieco, Williams, Sordillo, Gilligan, Schneider, Sharp, Rivera, Pitta, Mullen, Gordon, Busilla, Boyle, Adler, Ong, DiFerdinando, & Morse, Nosocomial Transmission of Multidrug-Resistant Tuberculosis Among

HIV-Infected Persons, 266 J.A.M.A. 1483 (1991).


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With drug resistant strains, the treatment and control of TB will be more difficult63 and more important.


C. Historical Role of the Public Health Officer Federal, state, and local levels of government are active in the control of communicable diseases, including TB.64 At the federal level, the United States Department of Health and Human Services is the body primarily responsible for public health.65 The Department of Health and Human Services gives other agencies responsibility for more specialized tasks.66 The Centers for Disease Control is one such federal agency especially important in the control of tuberculosis.67 The Centers for Disease Control develops model disease control programs based on the most recent understanding of disease transmission and effective control.68 State and local public health agencies use the information developed by the Centers for Disease Control. These agencies design and implement the disease control programs for their respective areas.69 The states generally have a state health agency that has responsibility for disease control.70 The states may, in turn, delegate this authority to a local agency at the county or municipal level.71 Usually, states do not exercise direct control over these local agencies but retain the power to take control in case of a crisis.72 If necessary, a state may exercise its police power to control disease.73 The state has this power as a sovereign.74 In a case evaluating the constitutionality of a smallpox vaccination law, the United States Supreme Court recognized that the police powers of the state included measures for the protection of public health, and that the states did not surrender such powers when they joined the Union.75 In a Florida public health law case, the court evaluated the importance of the sovereign power of the state to guard public health. [T]he preservation of the public health is one of the prime duties resting upon the sovereign power of the State. The health of the people has long been recognized 63

Expert Says Tuberculosis Is on the Rise, supra note 16. F. GRAD, supra note 11, at 15. 65 Id. 66 Id. at 15, 16. 64

67

68

NATIONAL ACTION PLAN, supra note 7, at 6-9.

Id. 69 F. GRAD, supra note 11, at 15. 70 Id. 71 Id. 72 Id. 73 Id. 74 Id. 75 Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905).

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as one of the greatest social and economic blessings. The enactment and enforcement of necessary and appropriate health laws and regulations is a legitimate exercise of the police power which is inherent in the State and which it cannot surrender. The Federal government also possesses similar powers with respect to subjects within its jurisdiction. The constitutional guarantees of life, liberty and property, of which a person cannot be deprived without the due process of law, do not limit the exercise of the police power of the State to preserve the public health so long as that power is reasonably and fairly exercised and not abused.76

Preservation of the public health is no less important today. The challenge is fitting programs that effectively preserve the public health into existing statutory frameworks.77 Many states have vested public health officers with broad powers to control the spread of TB.78 The measures authorized by legislation in the states vary greatly in the types of orders a public health officer may give, at what stage of infection, and for how long.79 The measures available may include quarantine, isolation, and compulsory hospitalization. The definitions of these terms are not consistent among the states. Along with such drastic measures, public health officers may order the infected person to report to a treatment center or to be removed from school, public transportation, public gatherings, or work until the patient is no longer infectious.80

H. THREE MEASURES TO ACHIEVE TUBERCULOSIS CONTROL The Centers for Disease Control has identified three measures of tuberculosis control that are essential to the goal of eradicating TB.81 The first measure is to identify people infected with TB and begin treatment.82 The second measure is to reduce the spread of TB by limiting the contacts of contagious patients.83 The third measure is to ensure that infected people complete their medication.84

76

Varholy v. Sweat, 15 So. 2 d 267, 269 (1943). The possible civil rights issues that may arise in the control of tuberculosis are outside the scope of this commentary.

77

NATIONAL A C T I O N P L A N , supra note 7 , at 2 5 .

78

F. G R A D , supra note 1 1 , at 64-94.

79

80 81

See, e.g.,

C A L . HEALTH & SAFETY C O D E § 3285 (West 1990). See also C O L O . REV. STAT. § 25-4-

507 (1990). F. G R A D , supra note 1 1 , at 7 6 . NATIONAL ACTION PLAN, supra note 7 , at 4 5 . Other TB control measures identified by the Centers for Disease Control are beyond the scope of this commentary.

82


83

Id. at 3 2 . Id. at 7 .

84


571


A. Identification of Tubercular Persons The Centers for Disease Control recommends identification and treatment of persons with TB.85 This recommendation includes not only identification of those who are currently contagious but also those who have latent TB.86 Patients with latent TB are the most likely source of later cases of clinical infection.87 About 90% of the people who have active clinical infection had latent TB for a year or more.88 The actual contagion is eliminated by using preventive therapy for those people likely to become contagious.89 Testing provides a means for preventive therapy to be initiated and allows those with symptoms, such as a cough, to be identified as contagious with TB. To avoid transmission in high risk settings, officials may need to separate those whose disease status is unknown until testing is completed. In the past, quarantine was the term for confinement of patients during testing until their disease status was known.90 This measure avoided the spread of disease in the interim period.91 In quarantine, the patient and the patient's contacts, such as family, are restricted to a certain setting, often the patient's home.92 B. Eliminating Disease Spread During the Contagious Stage Once a TB infection is identified, concern arises that the patient may be contagious. In order to eliminate the spread of disease, the contagious person must be removed from people who are likely to become infected.93 The first step in determining if a risk of spreading the disease exists is to establish if the patient is contagious or if contagion may reasonably be suspected. Contagion may be suspected when symptoms are present.94 Confirming that the patient is contagious requires sputum cultures that take three to six weeks to complete.95

85 86

Id. C O R E CURRICULUM ON TUBERCULOSIS, supra note 2 2 , at 12; ADVISORY COMMITTEE FOR EUMINATION OF TUBERCULOSIS, CENTERS FOR DISEASE CONTROL, SCREENING FOR TUBERCULOSIS AND TUBERCULOUS INFECTION IN H I G H RISK POPULATIONS AND THE U S E OF PREVENTIVE THERAPY FOR TUBERCULOUS INFECTION IN THE U N I T E D STATES 2 (May 1990).

87 88

SCREENING FOR TUBERCULOSIS, supra note 8 6 , at 1. Id.

89

C O R E CURRICULUM ON TUBERCULOSIS, supra note 2 2 , at 19.

90

J. TOBEY, PUBLIC HEALTH LAW 112 (1926).

91

Id. Id. at 113; F. G R A D , supra note 1 1 , at 7 5 . Cowley, Leonard, & Hager, supra note 6, at 5 3 . CORE CURRICULUM ON TUBERCULOSIS, supra note 22, at 2 1 ; Expert Says Tuberculosis Is on the Rise, supra note 16.

92 93 94

95



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CARLON

Once the patient is identified as contagious, the next task is to determine when the patient is no longer a health threat. The old standard was that two weeks of antibiotic therapy rendered the patient noncontagious.96 This assumption is no longer reliable with multidrug resistant strains of TB.97 Culture tests can determine which strain of TB is present, but they can take up to 12 weeks to complete.98 After the effective antibiotics are identified, the medication needs to be taken for several weeks before the patient is noncontagious.99 One aspect of controlling the spread of TB is to know how long the patient is contagious. A second aspect is to know where to confine an infected patient. The patient's residence is one possible location of confinement.100 The health officer may also have the patient removed from his dwelling and restricted to a facility for treatment.101 An appropriate facility would be a special unit equipped with adequate ventilation.102 Types of public facilities that may have such units are hospitals, jails, prisons, or homeless shelters.103 An example of confinement would be admission of a patient to a sanatorium. Although confinement in a defined area is commonly authorized by statute, the measures used more commonly today are exclusion from school and work.104 TB transmission generally results from exposure to the same air as the infected person for extended periods of time.105 Some settings where sharing infected air could occur include public transportation, office work environments, schools, and hospitals. Factors that influence the likelihood of TB transmission include "the person's stability and occupation, the activity and communicability of the disease, and the external circumstances of place and time."106 Exclusion of the contagious person from enclosed public areas may be sufficient to protect the public from the danger of contagion. In outdoor areas or in indoor areas where the patient is unlikely to remain long, contamination of shared air may be minimal, and the risks to others may not be significant.

96 97 98 99

100 101 102

103 104 105 106

Garrett, supra note 17. Id. Cowley, Leonard, & Hager, supra note 6 , at 56. C O R E CURRICULUM ON TUBERCULOSIS, supra note 2 2 , at 3 1 .

F. G R A D , supra note 1 1 , at 7 5 . Id. at 7 7 . CORE CURRICULUM ON TUBERCULOSIS, supra note 2 2 , at 9; Fischl, et al., supra note 62; Four California Prison Employees, supra note 36. Sherman, supra note 1, at 3 2 . F. GRAD, supra note 1 1 , at 7 6 . Garrett, supra note 17. F. GRAD, supra note 1 1 , at 9 3 .


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C. Ensuring Completion of Treatment In addition to transmitting TB now, the patient may develop the more dangerous, multidrug resistant form and transmit it in the future. The Centers for Disease Control urges outpatient programs to ensure that all patients complete their medication.107 Such programs may eliminate drug resistant strains. Unfortunately, the long treatment time is a problem in getting people to complete their medication. One reason is that patients are accustomed to taking medications for one or two weeks.108 This length of treatment may cure other infections, but for TB, a short course of antibiotics may only alleviate the symptoms without curing the infection.109 Drug therapy is recommended for a minimum of six months,110 and additional medication may be needed if positive cultures indicate continued infection at the end of that time.111 Medication needs to be continued for at least three months after a culture tests negative.112 Therapy may take as long as 18 to 24 months in cases of drug resistant TB.113 The Centers for Disease Control recommends closer supervision of outpatients to improve compliance over such long courses of treatment.114 Supervision measures that increase contact with the patients are referred to as directly observed therapy (DOT).115 Some states already have these programs in place.116 In others, the program would have to be created. The Centers for Disease Control calls for directly observed therapy programs to focus on areas where compliance is lowest.117 These areas would include "drug treatment centers, HIV/AIDS residential facilities, HIV clinics, homeless shelters and migrant centers."118 Compliance with treatment programs may be increased by creative approaches supporting those in treatment. Incentives of "money, food and free medicine" are being offered in homeless shelters and treatment centers for AIDS to encourage compli-

107

Voelker, Expert Says TB Plan Is Comprehensive, but States Wonder Who Will Pay, A m . Med. News, May 2 5 , 1992, at 1. 108 Expert Says Tuberculosis Is on the Rise, supra note 16 (quoting Dr. Fred Gordin, Chief of Infectious Diseases at the Veteran's Affairs Medical Center in Washington). 109 Id. 110


111

Id. Id.

112 113

NATIONAL ACTION P L A N , supra note 7, at 8.

114

Voelker, supra note 107, at 1. Id.; Altman, supra note 3 9 . States with D O T programs in place include South Carolina, Mississippi, and Alabama. Voelker, supra note 107, at 1. Id. Id.

115 116

117 118

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ance." 9 The Centers for Disease Control recommends confinement when a patient repeatedly fails to complete the medication, so treatment can be observed.120


m . THE AMERICANS WITH DISABILITIES ACT A new federal law may have an impact on the control of TB in the workplace. The Americans with Disabilities Act (ADA),121 which became effective July 26, 1992, seeks to eliminate discrimination based on disabilities.122 Title I applies to employers of 25 or more until 1994,123 when it will extend to employers of 15 or more.124 Title I of the ADA limits the actions an employer may take in regard to a disabled employee. Discrimination by an employer against a person with a disability will give rise to a cause of action.125 Consequently, employers in three categories need to be more aware of TB and of the possible impact of the ADA: first, those with occupations that attract persons at high risk of TB;126 second, those with occupations that increase susceptibility to the development of active TB;127 and, third, those with occupational settings with increased risk of exposure.128 Employers and occupational health workers are in a position to play an important role in the control of TB. "The largest increase (in TB) in the past several years has occurred in a population likely to be employed, the 25- to 44-year-old age group."129 Through contact with employees at preemployment screening, TB tests could be administered.130 In the job setting, employees could be monitored to see if they are taking their medicine.131 Title I of the ADA will govern whether employers can legally take such actions.

119

Altman, supra note 3 9 .

120


121

4 2 U.S.C.S. § 12101-12117 (Law. Co-op. Supp. 1992). 122 " I t is the purpose of this Act (1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." Id. § 12101 (b). 123 Id. § 12111(5). 124 Id. 125 Sherman, supra note 1, at 3 2 . 126 Such persons include migrant workers, laundry personnel, food handlers, custodians, and laborers. Lanphear & Snider, supra note 3 8 , at 503 (citing Snider, Tuberculosis, Preventing Occupational Disease and Injury (Am. Health Ass'n, Washington, D.C.)). 127 For example, these occupations include miners, sandblasters, stonemasons, potters, quarry workers, and foundry workers. Id. 128 F o r example, such settings include nursing homes, shelters for the homeless, hospitals, drug treatment centers, prisons/jails, and animal research laboratories. Id. 129 Id. (citing Rieder, Cauthen, Kelly, Bloch, & Snider, Tuberculosis in the United States, 2 6 2 J . A . M . A . 385, 386 (1989)). 130 Id. 131 Id.



575

Concerns of unfair discrimination may not seem likely for TB patients, but TB is clearly within the definition of a disability under the ADA.132 The ADA defines a disability as a physical impairment that substantially limits a "major life activity."133 The regulations promulgated under the ADA have adopted the Rehabilitation Act definition of handicapped.134 Under the Rehabilitation Act, limits on a "major life activity" qualify as a handicap.135 In the case of School Board v. Arline,m decided under the Rehabilitation Act, a schoolteacher was found to qualify as handicapped under the Rehabilitation Act because of her diagnosis of TB.137 The definition of TB as a disability did not depend on her contagious status.138 Contagion was only relevant to the question of whether she was an "otherwise qualified" employee under the Rehabilitation Act.139 Protection is provided under the ADA not only for those with a current condition, but also for people with a record of an impairment of a major life activity.140 Those with latent TB could be included even though they do not currently have an active infec•

1•

141

tious disease. Employers covered by the ADA are limited in the discriminatory actions they may take regarding a disabled employee. The employer must show that a "direct threat" exists before taking action based on the disability.142 The direct threat may be to the disabled individual or to anyone with whom the employee comes into contact at work.143 With TB, the patient poses a potential threat to those in a shared air 132

2 9 C.F.R. § 1630 (1991). 4 2 U . S . C . S . § 12102(2)(a). 134 2 9 C.F.R. § 1630.2(i) (App.) (1991). "Major life activities include . . . breathing, learning, and working." This wording is adopted from the Rehabilitation Act, 34 C.F.R. § 104 (1991). 135 Id. § 104. 136 4 8 0 U . S . 273 (1987). A n elementary schoolteacher was infected with tuberculosis. T h e school fired her because of her recurrent tuberculosis after she had been suspended with pay. The Court found that tuberculosis was a condition covered by the Rehabilitation Act and that the firing was a potential violation. The case was remanded for a determination of whether she w a s "otherwise qualified" for the j o b despite her tuberculosis. Id. at 289. 137 Id. at 2 8 1 . 138 Id. at 284. 139 Id. at 2 8 5 . 140 2 9 C.F.R. § 1630.2(k) (1991). 141 Id. 142 " I t may be a defense to a charge of discrimination under this Act that an alleged application of qualification standards . . . has been shown to be job-related and consistent with business necessity, and such performance cannot b e accomplished by reasonable accommodation." 4 2 U . S . C . S . § 12113(a). " T h e term 'qualification standards' may include a requirement that an individual shall not pose a direct threat t o the health o r safety to other individuals in the workplace." Id. § 12113(b). " T h e term 'direct threat' means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation." Id. § 12111(3). 143 Id. § 12113(b). 133


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space.144 The employer may not insist upon achieving a level of no risk but may only discriminate if the risk cannot be lowered below a "significant risk of substantial harm"145 through "reasonable accommodation."146 The regulations show that in evaluating a significant risk, "the factors to be considered include: (1) [t]he duration of the risk; (2) [t]he nature and severity of the potential harm; (3) [t]he likelihood that the potential harm will occur; and (4) [t]he imminence of the potential harm."147 The employer may not take further actions once the risk is less than "significant."148 The types of actions that may be taken are referred to as "reasonable accommodations."149 Employers are required to make reasonable accommodations to enable the disabled employee to do the job.150 Segregation of an employee as a reasonable accommodation is prohibited.151 The ADA prohibits an employer from assigning or reassigning "(as a matter of reasonable accommodation) employees with disabilities to one particular office or installation, or to require that employees with disabilities only use particular employer provided non-work facilities such as segregated breakrooms, lunch rooms, or lounges."152 No broad statutory exception allows an employer to take actions to protect public health. The only statutory exception allowing discrimination on the basis of the health of the individual is in food handling.153 Employers of people engaged in food handling are allowed to follow state or local law "which is designed to protect the public health."154 Title I of the ADA does not preempt any greater protections for the disabled individual that are available in state or local law.155 Public health

144 145

146 147

148 149 150 151

152

Garrett, supra note 17. A significant risk of substantial harm is described as " a high probability of substantial h a r m . " 29 C.F.R. § 1630.2(r) (App.) (1991). 42 U . S . C . S . § 12111(9); 2 9 C.F.R. § 1630.9 (1991). 29 C.F.R. § 1630.2(r) (1991). Determining whether an individual poses a significant risk of substantial harm to others must be made on a case by case basis. The employer should identify the specific risk posed by the individual. . . . For individuals with physical disabilities, the employer must identify the aspect of the disability that would pose the direct t h r e a t . . . . Such consideration must rely on objective, factual evidence—not on subjective perceptions, irrational fears, patronizing attitudes, o r stereotypes—about the nature o r effect of a particular disability, or of disability generally. 2 9 C.F.R. § 1630.2(r) (App.) (1991). " T h e risk can only be considered when it poses a significant risk." Id. 4 2 U . S . C . S . §§ 12112(b)(5) & 12111(9). Id. § 12112(5). 2 9 C.F.R. § 1630.5 (App.) (1991).

Id. 4 2 U . S . C . S . § 12113(d)(3). 154 Id. 155 2 9 C.F.R. § 1630.1(c)(2) (1991).

153


577


measures are not addressed in the statute, but the appendix to the regulations states as follows: The ADA does not automatically preempt medical standards or safety requirements established by Federal law or regulations. It does not preempt State, county, or local laws, ordinances or regulations that are consistent with this part, and are designed to protect the public health from individuals who pose a direct threat, that cannot be eliminated or reduced by reasonable accommodation, to the health or safety of others.156

IV. ANALYSIS A. Legislative Measures to Achieve Tuberculosis Control The most effective measures to control TB will be those based on an understanding of the disease, its transmission, and its cure. For example, some states have tuberculosis legislation that has remained largely unchanged for decades,157 and such legislation may not reflect current medical understanding.158 In addition, some statutes encompass more communicable diseases than just TB,159 so these statutes may limit the ability of the health officer to control TB effectively. Our current medical understanding identifies three measures of TB control: first, to identify and begin treatment on all people with TB;160 second, to confine people with contagious TB when necessary to eliminate the spread of TB;161 and, third, to ensure that TB patients complete the course of their medication.162 Effective legislation will allow the public health officer to establish all three measures of control. 1. Testing Detention to Identify Infected Persons A health officer needs to identify and treat people with either latent or clinical TB.163 When people with latent TB have been identified and treatment is commenced, the contagious stage of TB may be avoided.164 The health officer needs laws authorizing detention and compulsory testing to accomplish this goal because not every person with suspected TB will comply with testing voluntarily. 156 157

29 C.F.R. § 1630.1(c)(2) (App.) (1991). See, e.g., A R K . C O D E A N N . §§20-15-701 to 710 (1991); D E L . C O D E A N N . tit. 16, §§ 151-57 (1983).

158


159

See, e.g., S . D . CODIFIED LAWS A N N . §§ 34-22-1 to 22-4 (1988).

160

NATIONAL A C T I O N P L A N , supra note 7 , at 7 .

161

Id. at 3 2 . Id. at 7 . Id.

162 163 164

C O R E CURRICULUM O N TUBERCULOSIS, supra note 2 2 , at 19.


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Involuntary medical testing is authorized by statute in other circumstances, most notably when a person may be driving under the influence of intoxicating drugs or alcohol.165 The basis for legislation allowing drug and alcohol testing for drivers may be the health and safety of the public. The same considerations support involuntary testing for tuberculosis. While the effects of TB infection may not be as immediate or as sensational as the effects of an auto accident, they can be just as deadly. To accomplish the goal of identifying all people with latent TB infection, everyone in the United States would need to be tested. The cost of reaching this goal may be beyond our resources.166 Testing people in high risk settings and people with higher risk of susceptibility may be more cost effective because of the increased likelihood that infection will be spread by these groups.167 People in high risk groups would include those with HIV infection;168 contagious TB develops at the rate of seven to 10% every year in patients with HIV infection.169 For the general population, the risk of becoming contagious is only three to 10% over an entire lifetime.170 Likewise, compulsory testing is appropriate when a person is suspected of having contagious TB. Measures may be taken to remove the person from contact with others, if necessary, once the diagnosis is confirmed. If testing detection laws allow the health officer to hold a person in a special facility until test results are known, the spread of disease in the interim period is avoided.171 Two considerations in compulsory testing detection are how long the detention should be and what type of test should be ordered. The Centers for Disease Control recommends a Mantoux skin test for preventive therapy programs.172 The results of a Mantoux skin test can be read in 48 to 72 hours.173 Therefore, the length of detention may be limited to 72 hours, if the person is not contagious. Detention would not often be necessary because voluntary confinement for such a short period is likely. Although this detention would not be a necessary measure in most cases, it would have great value in settings such as jails and homeless shelters that have a constant influx of potentially infected people. Testing detention statutes should allow quarantine to be ordered in a facility or unit that has ventilation sufficient to control the 165

166

See, e.g., IDAHO C O D E § 18-8002 (Supp. 1992); I N D . C O D E A N N . § 9-30-6-2 (West 1992); K A N . STAT. A N N . § 8-1001 (1991); N . C . G E N . STAT. § 20-16.2 (Supp. 1991). Voelker, supra note 107, at 1.

167


168

C O R E CURRICULUM O N TUBERCULOSIS, supra note 2 2 , at 1 1 , 12.

169

Starrer, TB Hits More Health Professionals, 170 Id. 171 J. TOBEY, supra note 9 0 , at 112. 172 Id. at 1 3 . 173

A m . Med. News, Mar. 23/30, 1992, at 1.

C O R E CURRICULUM O N TUBERCULOSIS, supra note 2 2 , at 1 3 .


579

spread of TB.174 This legislation would ensure that the health officer has the authority to segregate the person until his or her health status is known. This measure will keep a single case of TB from turning into many.


2. Confinement to Prevent the Spread of Tuberculosis Confinement laws are those designed to prevent the spread of TB by reducing contact between an infected person and others. These laws must apply to people who are suspected of being contagious as well as to those who are diagnosed as having contagious TB. If not, TB may be transmitted between the time contagion is suspected and when tests confirm the contagious state. State laws differ in respect to the conditions under which confinement is allowed.175 Many do not allow confinement to be ordered until the patient refuses to undergo voluntary treatment.176 Some states authorize confinement when the patient is not in compliance with treatment orders.177 Compliance with therapy should not be the focus of a statute designed to eliminate contagious contact because a patient may be contagious even while on medication. The basis of a statute to control disease spread must be the likelihood that people will be infected by the TB patient, especially when the patient has multidrug resistant TB. In that case, the medicine may not be effective against the strain of TB present in that patient.178 Some courts have granted the public health officer discretion in evaluating the necessity for confinement.179 A mere suspicion is not sufficient to impose confinement, but the existence of contagion generally does not need to be proved prior to issuing the order.180 The need for the health officer to confine the patient prior to proving that contagion is present would be important, especially in homeless shelters or other areas where the conditions are favorable for the disease to spread.181 Statutes that authorize confinement of "persons reasonably suspected 174

175

"Ventilation with fresh air is important and five or six room air changes per hour are desirable." Id. at 9 . Effective isolation requires negative air pressure in the rooms, s o infected air does not flow into the hallway or other communal space. Fischl, et al., supra note 6 2 . " I f a patient releases enough infectious particles at a fast enough rate, neither HEPA [high efficiency paniculate air] filtration of recirculated air nor 100 percent fresh air may adequately protect an employee working in the cell . . . ." Four California Prison Employees, supra note 3 6 . F. G R A D , supra note 1 1 , at 74-77.

176

See, e.g., TENN. CODE A N N . § 68-9-206 (1989).

177

F. G R A D , supra note 1 1 , at 7 6 . Sherman, supra note 1, at 3 3 . F. GRAD, supra note 1 1 , at 76. Id. Expert Says Tuberculosis Is on the Rise, supra note 16; Lanphear & Snider, supra note 3 8 , at 5 0 1 ; Four California Prison Employees, supra note 36.

178 179 180 181


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of having tuberculosis in an infectious stage"182 will allow more effective control than those authorizing such confinement "upon proof . . . that the public health and welfare are substantially endangered by the person infected with tuberculosis."183 A time period when TB may be spread can be eliminated by allowing the health officer to move more quickly. To determine when contagion is likely, the health officer may refer to guidelines from the Centers for Disease Control.184 These guidelines list increased risk factors that, when present, increase the likelihood that a person infected with TB will be contagious.185 Local outbreaks of contagion also may give rise to a reasonable suspicion that a particular patient is contagious. Once a health officer has established that a sufficient suspicion of contagion exists to warrant confinement, the next task is to determine whether the confinement order will be effective to contain the spread of TB. Three aspects relevant to determining the effectiveness of the orders are: first, the length of time covered by the order; second, where the confinement will take place; and, third, how to monitor compliance with the order. The health officer needs to determine the appropriate length of time for such confinement. An influential public health figure stated that, contrary to the old rule, patients who have taken antibiotics for two weeks still may be contagious.186 Up to 12 weeks are needed to find an effective antibiotic with a sputum culture.187 After several more weeks of taking effective antibiotics, a patient may be presumed noncontagious.188 Therefore, the length of confinement authorized should allow sputum cultures to be performed and allow enough medication to be taken to render the patient noncontagious. However, the most effective laws would allow confinement to continue until test results confirm that the patient is no longer contagious because the health officer may need to confine patients who continue to be contagious despite antibiotic therapy. The length of confinement is one aspect of effective control. Determining a proper place of confinement is another aspect. In the past, sanatorium care was seen as the most effective means of dealing with TB. In tuberculosis the incubation period cannot be determined and the time when infectiousness begins or ends is not predictable. The sanatorium is the answer to

182

C A L . HEALTH & SAFETY C O D E § 3285(a) (West 1990).

183

F L . STAT. A N N . § 392.56(2)(a) (West 1986).

184


185

Id. 186 Garrett, supra note 17 (quoting N e w York State epidemiologist, Dr. George DiFerdinando). 187 Cowley, Leonard, & Hager, supra note 6 , at 5 6 . 188



581


this administrative problem. In a sanatorium the patient is given the best chance of cure and a comfortable place for voluntary segregation where he may prevent the spread of infection among his family and friends.189

Sanatorium care in Illinois in 1944 was employed for these reasons.190 The basis for the program was the needs of the patient and community. Those needs have not changed. In fact, with the development of drug resistant TB, the unpredictability of the contagious phase is greater than before.191 Some health experts are calling for a return to sanatorium care.192 In addition to sanatoria, other public facilities may be equipped with proper ventilation to control the spread of TB. For example, in homeless shelters without special ventilation, the surrounding residents continue to be exposed to tuberculosis if the TB patient is confined to the shelter. These surrounding residents are more likely to be infected with HIV than the average population193 and thus are more susceptible both to the risk of contracting clinical TB194 and to the risk that the infection would quickly be fatal.195 The conditions or court orders that brought the person to the homeless shelter, jail, or prison make it unlikely that the person could go to another location where contagion would not be a problem. Compared with confinement to a space with shared air, confinement to a facility equipped with proper ventilation would be more effective and reasonable because the spread of the disease would be avoided. For people who are not in public facilities with shared living areas, no reason may exist for confining them to special facilities. Two options are to confine them to their residences or to exclude them from access to public areas with shared air. The least restrictive confinement orders would exclude the patient from public areas with shared air until they are no longer contagious. In 1991, a St. Louis schoolteacher passed TB to about half the children with whom he had contact.196 A public health officer needs to be able to prevent this type of exposure to disease. Confinement laws should allow the public health officer to order a person who is diagnosed or suspected of 189

ILLINOIS LEGISLATIVE C O U N C I L , supra

note 4 , at 3 .

190

Id. 191 Garrett, supra note 17. 192 " T h e r e ' s a very good argument for reopening sanatoria . . . I think it's a n obvious situation when the indigent T B patient poses a direct risk t o thousands of others living in shelters." Cowley, Leonard, & Hager, supra note 6, at 5 7 (quoting Michael Osterholm, an epidemiologist at the Minn. Dep't of Public Health). 193 Expert Says Tuberculosis Is on the Rise, supra note 16; Lanphear & Snider, supra note 3 8 , at 5 0 1 ; Four California Prison Employees, supra note 3 6 . 194

C E N T E R FOR PREVENTION SERVICES, C E N T E R S FOR D I S E A S E C O N T R O L , T B FACT S H E E T (1990).

195

Fischl, e t al., supra note 6 2 . A n elementary schoolteacher was misdiagnosed as having lung cancer. Before the proper diagnosis was made, 175 children became infected with tuberculosis. Garrett, supra note 17, at 6 1 .

196


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having clinical TB to stay out of enclosed public areas. This confinement eliminates much of the danger of TB transmission while allowing a great degree of freedom for the patient. People who chronically violate these orders may be confined at home or in a defined area.197 Electronic monitoring may be an effective method of encouraging compliance with orders confining individuals to their homes or to a defined area. Electronic detention methods have been used in criminal enforcement systems with some success.198 Disease control may be an even more appropriate use of electronic monitoring because the goal is to monitor compliance with confinement orders, not to impose punitive sanctions against the person. An electronic bracelet in a distinctive color, such as orange or yellow, could be placed on people who do not comply with orders confining them to their homes or to a defined area. Compliance with confinement orders would be monitored electronically. Removal of the bracelet from the defined area would trip an electronic alarm, and the violation would be noted.199 In addition, people who are at increased risk of the danger of contagion, such as those with HIV infection, would be warned by the distinctive color to avoid remaining in the area. Electronic monitoring may be useful only in a limited range of cases because voluntary compliance with confinement orders would likely be the usual case. When the patient has demonstrated noncompliance, however, this interim step prior to compulsory hospitalization allows the person more liberty than confinement in an institution. It is also a more accurate and efficient means of determining compliance than sending health workers out to observe whether the patient is in the right area. Putting the patient in a special facility, where the government may be responsible for the costs, would likely be more expensive to the state.200 3. Compulsory Treatment to Ensure Completion of Medication Confinement may reduce the immediate spread of TB, but to eliminate the drug resistant form, patients must complete their medication. The rates in the United States for completion of a full course of medication, as low as five to 10% among the homeless,201 are worse than those in some 197 198 199

200

201

F. G R A D , supra note 1 1 , at 9 3 . Ankle Bracelet Plan Is Approved, Houston Chronicle, M a y 13, 1992, at A-22. Electronic detention works " b y means of a transmitter that cannot be removed from the inmate's wrist. The transmitter sends out a signal if the inmate moves farther than 300 feet from his or her telephone." City to Put More Inmates on Electronic Monitoring, Seattle Times, July 2 4 , 1992, at B 3 . "Removal of the bracelet causes it to deactivate." Ankle Bracelet Plan Is Approved, supra note 198. Electronic detention is being used in corrections systems as it avoids the costs of "feeding inmates and providing medical care." City to Put More Inmates on Electronic Monitoring, supra note 199. Altaian, supra note 3 9 .



583

third world countries.202 If compliance rates do not improve, drug resistant forms of TB "will soon become the norm."203 Compulsory treatment laws must authorize the health officer to order infected people to complete their medications. Compliance with treatment plans is necessary to prevent these dangerous strains of TB from developing. The Centers for Disease Control advises: "Missed appointments and other noncompliant behaviors should be brought to the attention of the responsible public health officials. Health department workers may use incentives/enablers, behavior modification, directly observed therapy, and/ or confinement (if all else fails) in order to ensure compliance."204 New York City has considered holding people for involuntary treatment.205 The Centers for Disease Control recommends isolation when a patient refuses a course of medication.206 When a patient refuses to comply with treatment, detention would allow the health officer to observe that the full course of treatment is given. Laws need to be drafted authorizing detention when the patient repeatedly fails to comply with a treatment program.207 Statutes may specify that orders may be effective only for a specified period, such as a maximum of six months,208 or until the person is no longer contagious. A confinement of six months may be effective to reduce the immediate spread of disease because many patients would not be contagious longer than that. To reduce development of drug resistant TB, however, the time period for an order must allow for a full course of medication to be taken.209 Effective therapy may require 18 to 24 months if the patient has drug resistant TB.210 Effective compulsory treatment orders must have time limits that extend to the end of treatment. Shorter time periods may allow virulent strains of TB to develop that may erupt into an infectious state later. B. The Americans with Disabilities Act as a Possible Barrier to Tuberculosis Control A conflict between TB control measures and the requirements of the ADA could arise when an employer acts to protect the other employees or 202

A study at New York's Harlem Hospital disclosed that 89% of TB patients failed to complete their therapy, and 2 7 % were sick again within a year. "Tanzania, Malawi and Mozambique all have 8 5 percent [completion rates] in very difficult circumstances." Cowley, Leonard, & Hager, supra note 6, at 56 (quoting Barry Bloom, Weinstock Professor of Microbiology and Immunology at N e w York's Albert Einstein College of Medicine).

203

Reichman, supra note 14.

204


205

Cowley, Leonard, & Hager, supra note 6, at 5 7 . Tuberculosis on the Rise (CNN television broadcast, May 1, 1985). Expert Says Tuberculosis Is on the Rise, supra note 16. See, e.g., COLO. REV. STAT. § 25-4-507 (1990). Drug Resistance and Sanatoria, 255 SCIENCE 149 (Jan. 10, 1992).

206 207 208 209 210



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CARLON

the public served by the business. This conflict could become important because TB is increasing most rapidly among those in an employable age range.211 In particular, employers need to prove that a direct threat exists before they are allowed to take any protective actions. They may be prohibited from informing other workers or clients of the risk of TB exposure, and they may be limited in the amount and types of information that can be obtained about the employee's status. Also, employers may not be allowed to isolate the infected employee, nor may they be able to protect the health of AIDS or HIV-infected workers. In addition, employers may be limited in their ability to comply with orders of public officials that exclude the person from work, and the public health officer may be bound by the ADA when dealing with work settings. The first question is whether employers would wish to exclude TBinfected employees from the workplace. By excluding such workers, employers can reduce the spread of TB among their employees, thus avoiding additional lost work time and health care costs. However, not all actions by employers would work to the detriment of TB infected employees. Prior to the ADA, employers could provide preemployment diagnostic tests and encourage the employee to complete medication.212 Employers who were aware of special risks of TB that apply to their workplaces213 could obtain information on ways to avoid increased medical problems and give this information to infected employees and their coworkers. Employers could consult with public health officers to determine what restrictions, if any, were necessary to protect the health of the patient, the coworkers, and the public served by the employer. A strict interpretation of the ADA may discourage employers from taking such beneficial measures because regulations under the ADA may be interpreted as prohibiting these measures. Charges of discrimination may be raised when employers treat an employee with TB differently from other workers.214 However, the ADA does allow an employer to take action when a "direct threat" is shown.215 Although no case law exists for this statute, a reasonable assumption is that the employer could prove a direct threat by showing that the person is currently contagious. However, determining the contagious status of the employee may be quite difficult.216 Health officials are unable to use the old

211

Lanphear & Snider, supra note 38, at 503 (citing Rieder, Cauthen, Kelly, Bloch & Snider, Tuberculosis in the United States, 262 J.A.M.A. 385, 386 (1989)). 212 Id. 213 Id. 214 Sherman, supra note 1, at 33. 215 42 U.S.C.S. § 12113(b). 216 Garrett, supra note 17.



585

presumptions that indicate the disease is not communicable,217 because drug resistant TB can continue to be contagious even though the person is on antibiotics.218 The employer must not only establish a direct threat, but must also show the presence of a substantial risk.219 Protective actions may be too late to be effective if the contagious status of the patient must be proved first, because TB may spread in the interim period. In particular, an employer who fears a lawsuit may be inhibited from taking protective action prior to proving that the employee is contagious. Another hindrance to the employer is the limit on the employer's ability to gather information about the employee's disease status. The employer is prohibited from asking about the disability to determine "conditions of employment."220 Employees are not required to tell their employers that they are contagious. When dealing with a condition, such as AIDS, which is unlikely to be transmitted to others at work, the employer has no reason to know of the contagious status of the employee. However, when the mere presence of the employee presents a danger, the patient, who has the information, should be required to inform the employer of the infection and the contagious status. For example, the time honored method of bringing a note from the physician before being allowed to return to work lets the employer know when the health threat is gone, and this method is not too great a burden on the employee. Without such a requirement, the employer is subject to losses that could be easily avoided through simple measures, such as removing the infected employee to another room. The ADA regulations, however, have limitations against the segregation of people with disabilities in the workplace.221 An employer is prohibited from assigning or reassigning "(as a matter of reasonable accommodation) employees with disabilities to one particular office or installation, or to require that employees with disabilities only use particular employer provided non-work facilities such as segregated break-rooms, lunch rooms, or lounges."222 The ADA is intended to protect employees with HIV or AIDS from discrimination.223 A provision allowing discrimination for contagious diseases could result in discrimination against these employees. An exception allowing discrimination for a communicable disease transmitted through 217 218 219 220

221 222 223

Id. Id. 42U.S.C.S. § 121130). Id. § 12112.

2 9 C.F.R. § 1630.5 (App.) (1991). Id. Id. § 1630.2(j) (App.).


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CARLON

shared air in the workplace would be more narrowly drawn. It would protect the interests of the coemployees and members of the public who come into contact with the TB infected employee without subjecting AIDS or HFV patients to discrimination. Another problem arises when other employees are HIV positive or have AIDS. Employees with AIDS and HIV infection also fall within the ADA definition of disabled. An employee with AIDS would be at risk when working with an employee infected with TB. An unresolved issue, then, is to determine which employee's rights under the ADA will dominate.224 The ADA regulations do address the issue of public health laws.225 State laws are not to be preempted if they are consistent with the ADA.226 The wording that the state laws controlling TB must be "consistent with this part" to avoid preemption raises a concern about whether the public health officer would be able to exclude a contagious person from work. Will this mean that a public health officer cannot issue an order removing a person from work unless the direct threat standard is first established? If the health officer is able to issue an order removing the person from work, will the employer be able to take any action in support of the order? These questions appear to have no easy resolution. Employers have no broad exception allowing action to control diseases that may be spread in the workplace. However, a narrow exception exists allowing food handlers to follow state or local law "which is designed to protect the public health or safety of others."227 Although tuberculosis is not transmitted by food,228 an analogy can be made here showing a legislative intent for employers to follow public health laws relating to other diseases. Now that public budgets are inadequate to meet many needs, cooperation between the private sector and government is more important than ever. Government personnel are in short supply, and public resources should go where the need is most critical. The appendix to the Americans with Disabilities Act Handbook addresses public health concerns: No provision in the ADA is intended to supplant the role of public health authorities in protecting the community from legitimate health threats. The ADA recognizes the need to strike a balance between the right of a disabled person to be free

224 225 226 227 228

Sherman, supra note 1, at 3 3 (quoting Edward S. Kornriech, an attorney who represents hospitals). 29 C.F.R. § 1630.1(c)(2) (App.) (1991). Id. 4 2 U . S . C . S . § 12113(d)(3). C O R E CURRICULUM ON TUBERCULOSIS, supra note 2 2 , at 3 1 .


587

from discrimination based on unfounded fear and the right of the public to be protected.229


The "right of the public to be protected" is important. America must allow employers and others covered by the ADA to take action to protect all of their employees and patrons. CONCLUSION The elimination of TB will be more challenging today, so legislatures should remove any legal barriers to the effective control of TB. State and local legislation needs to be reviewed to see if it provides for all three aspects of tuberculosis control. Public health officers need to develop and implement creative methods of encouraging compliance with treatment plans to avoid resort to the legal system. When legal actions become necessary, the rights of the individual patient must be balanced against the gravity of the risk to the public. The health of the public must not be left out of the equation. The Americans with Disabilities Act should shift the burden to the employee of showing that contagion is not a direct threat, so an employer may take protective actions. 229

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION & U.S. DEPARTMENT OF JUSTICE, AMERICANS WITH DISABILITIES ACT HANDBOOK App. M, at 4.

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Improvement of bone marrow fibrosis with ruxolitinib: will this finding change our perception of the drug?

Who will educate our nurses? A strategy to address the nurse faculty shortage in New Jersey.

Genospirituality: Our Beliefs, Our Genomes, and Addictions.

Our health is global health.

Will regulation control health-care costs?

Teaching Our Students, Our Residents and Ourselves.