Dept. of Civil Rights: Michigan’s Ban on HIV-Positive Inmates Working in Food Service Violates Law

Todd Heywood

The Michigan Department of Corrections has prevented HIV-infected prisoners from working in food service positions since at least 1999. But the Michigan Department of Civil Rights argues that the policy violates non-discrimination statutes.

– The Michigan Department of Corrections, which oversees the operations
of the state’s prisons, has prevented HIV-infected prisoners from
working in food service positions since at least 1999. But legal
scholars and the Michigan Department of Civil Rights argue that the policy violates non-discrimination statutes, including the Americans With Disabilities Act.

The corrections
department contends that the policy is in place to protect the "safety
and security" of prison facilities, despite the fact that state health
officials say that HIV and AIDS can’t be transmitted through food.

"A prison holds about
1,000, 1,200 people and as those 1,000 prisoners go through for
breakfast, lunch and dinner, prisoners are scooping that food onto
their trays," said MDOC spokesman Russ Marlan. "So if a prisoner was
HIV-positive and sneezed onto a food item and then a prisoner ate that
food item and that prisoner had a lesion in their mouth they could
contract the disease."

Marlan also used the concept of a prisoner bleeding on a radish as a potential for the spread of the virus.

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"Say a prisoner cuts
himself and his blood falls on a radish and somebody eats that radish
and that he’s got an open lesion in his mouth, there’s a potential for
him to contract that disease," Marlan said. "As responsible corrections
professionals dedicated to running a safe and secure prison system, we
made the decision not to allow them (prisoners with HIV) to work in
that area of prison operations."

"We have not seen a case
of HIV transmission through food," said James McCurtis, spokesman for
the Michigan Department of Community Health, which records and monitors
all cases of confirmed HIV infections in the state.

Both the MDCH and the
Centers for Disease Control and Prevention in Atlanta, the federal
government agency responsible for tracking HIV and other diseases,
stress that HIV is not transmitted through casual contact, such as
through food or from toilet seats. HIV is transmitted when HIV-infected
body fluids, such as blood, semen, breast milk and vaginal secretions,
are exposed directly to cuts in the body through intimate activities
such as sex, or sharing needles. The virus has been spread from mother
to baby during birth and through breast feeding, studies show.

Dan Levy, chief legal
officer of the Michigan Department of Civil Rights, said the reasoning
for the policy offered by Marlan won’t stand up in court.

"That won’t cut it. As
long as that stays the reasoning they are in violation" of the
Americans with Disability Act, Levy said. He also acknowledged the
department was opening a formal investigation of the policy. "I suspect
their reasoning will change."

Bebe Anderson, HIV
project director for the national organization Lambda Legal, was
surprised when she heard about the policy. "I’m certainly troubled by
any policy that would treat people with HIV differently based on the
total misunderstanding of HIV."

She said that federal
law has been "clear" on the subject of federal anti-discrimination
laws, such as the ADA – and that correctional facilities are obligated
to follow the ADA.

"It’s also very clear those laws prohibit treating those people with HIV differently," she said.

Lance Gable, an associate professor of law at Wayne State University, agreed with Anderson’s assessment.

"To bar someone from
having a food service job because of their HIV status is clearly a
violation of the ADA. That’s clearly inappropriate," he said.

Jay Kaplan, staff
attorney for the LGBT project of the American Civil Liberties Union of
Michigan, also shared concerns about the legality of the corrections
department policy.

But Marlan said the department is confident in its policy.

"Does it surprise me
that three lawyers would say something contrary to what we believe?
No," he said. "I’ll tell you the Attorney General represents the
Department of Corrections and they don’t believe it violates the ADA."

Marlan referred Michigan
Messenger to attorney Pete Govorchin of the Office of the Attorney
General for further details. Calls to Govorchin were not returned.

While Marlan said that
HIV might be spread through sneezing and blood on food, fellow
corrections spokesman John Cordell indicated there was a slightly
different reason for the policy.

He said life in prison
runs on very different rules and it would be possible that a prisoner
might feel an HIV-positive prisoner who was preparing and serving food
was intentionally attempting to infect him. That, Cordell said, could
lead the uninfected prisoner to attack the HIV-positive prisoner in
"the big yard on Tuesday."

Levy, from MDCR, said Cordell’s explanation would pass legal muster in a court challenge.

"It’s not a food service
issue per se, which is already decided in the public sector, you cannot
deny somebody a job in food service because they are HIV positive
because you believe they can spread the virus. It is more an imaginary
problem than real. In a prison setting, the courts believe the
imaginary is good enough (such as a potential reaction of prisoners
fearing exposure to the virus from food)."

And while the policy
prohibits HIV positive prisoners from working in food service, it
allows for those prisoners infected with Hepatitis B or C to work in
food service. Prisoners with any of the three viruses are barred from
working in health care.

Marlan said prisoners with Hepatitis B and C are subject to some restrictions when working in food service.

"Hepatitis B and C
prisoners are not allowed to work in food service if they have such
conditions as cuts, sores, uncontrolled cough, runny nose, poor hygiene
– so there are some provisions on them working in food service," Marlan

The CDC says between
800,000 and 1.4 million Americans have chronic Hepatitis B infections.
This is what the CDC has to say about the spread of the virus:

How is hepatitis B spread?

Hepatitis B is spread when blood, semen, or other body fluid infected
with the hepatitis B virus enters the body of a person who is not
infected. People can become infected with the virus during activities
such as:

Birth (spread from an infected mother to her baby during birth)
Sex with an infected partner
Sharing needles, syringes, or other drug-injection equipment
Sharing items such as razors or toothbrushes with an infected person
Direct contact with the blood or open sores of an infected person
Exposure to blood from needlesticks or other sharp instruments

The government agency also says it has documented some cases of food related transmission of Hepatitis B:

Can hepatitis B be spread through food?

Unlike Hepatitis A, it is not spread routinely through food or water.
However, there have been instances in which Hepatitis B has been spread
to babies when they have received food pre-chewed by an infected person.

The CDC says an
estimated 3.2 million Americans are suffering from chronic Hepatitis C
infection. Here’s what the CDC says about Hepatitis C transmission:

How is hepatitis C spread?

Hepatitis C is spread when blood from a person infected with the
hepatitis C virus enters the body of someone who is not infected.
Today, most people become infected with the hepatitis C virus by
sharing needles or other equipment to inject drugs. Before 1992, when
widespread screening of the blood supply began in the United States,
hepatitis C was also commonly spread through blood transfusions and
organ transplants.

People can become infected with the hepatitis C virus during such activities as

Sharing needles, syringes, or other equipment to inject drugs
Needlestick injuries in healthcare settings
Being born to a mother who has hepatitis C
Less commonly, a person can also get hepatitis C virus infection through
Sharing personal care items that may have come in contact with another person’s blood, such as razors or toothbrushes
Having sexual contact with a person infected with the hepatitis C virus

Can hepatitis C be spread within a household?

but this does not occur very often. If hepatitis C virus is spread
within a household, it is most likely a result of direct,
through-the-skin exposure to the blood of an infected household member.

Marlan said the department had no plans to revisit the policy anytime soon.

The policy, which was
revised last in 1999 – when Jennifer Granholm was attorney general –
has the full blessing of the governor.

"I suppose you are
always going to find people who disagree with a policy," Granholm
spokeswoman Liz Boyd said. "But they have a policy in place they are
confident with and we support that policy."

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