News Law and Policy

Proposed Nebraska Law Includes Inaccurate Information About HIV

Martha Kempner

The Nebraska legislature is working on a law that would make it a crime to assault a public safety officer with bodily fluids but it's based on inaccurate information about HIV transmission. 

The Nebraska legislature has been really busy lately.  As Robin Marty has reported, this week alone they’ve moved a parental notification bill forward and worked to ban “telemedicine” abortion.  Now they’re working on a law that would make it a crime to assault a public safety officer with bodily fluids.  The problem is that the law seems to be based on inaccurate information about how HIV and Hepatitis B and C are spread. 

The law was introduced by Senator Mike Gloor of Grand Island who says he was approached by law enforcement officers who explained that incarcerated individuals frequently assault public safety officers not just by spitting on them but also by throwing urine and feces at them. 

The law makes it a misdemeanor to knowingly assault a public safety officer with bodily fluids, which have been defined as “any naturally produced secretion or waste product generated by the human body and shall include, but not be limited to, any quantity of human blood, urine, saliva, mucus, vomitus, seminal fluid, or feces.”  

Such an assault, however, becomes a Class IIIA felony “if the person committing the offense strikes with a bodily fluid the eyes, mouth, or skin of a public safety officer and knew the source of the bodily fluid was infected with the human immunodeficiency virus, hepatitis B, or hepatitis C at the time the offense was committed.”  Gloor apparently originally wrote the bill to say “lethal diseases” but thought better of it because: “We have a lot of immigrants in Nebraska, like from Sudan. I was worried about it covering some rare tropical disease.”

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Public health advocates fear that this will set back HIV prevention efforts by spreading misinformation and reinforcing stigmas that they’ve worked for decades to overcome.  First, while health care professionals and educators have been suggesting that all individuals be tested for HIV; this law seems to penalize them for doing so.  It’s only a felony, after all, if you know your status. 

They are also concerned that the law is based on inaccurate information about how HIV and Hepatitis B and C are transmitted.  While HIV, for example, may be present in all of the bodily fluids listed in the law, the CDC says that only blood, semen, vaginal fluid, spinal fluid, and breast milk contain large enough quantities to spread the virus. Moreover, HIV is only transmitted if it comes into contact with mucus membranes or broken skin but the law makes it felony if bodily fluids are thrown at “eyes, mouth, or skin.”  Similarly, Hepatitis B and C are present in bodily fluids but mostly spread through blood such as sharing needles. 

Advocates argue that laws such as this don’t just set standards behavior but are also used to educate and, therefore, the inaccurate information it includes can be harmful to the public. Senator Gloor (who has said he open to rewriting the specifics of the law to be more accurate) has an easy answer to these advocates: stop talking about the law.  “This is a very small bill. No one was paying attention to it except law enforcement. If it does cause misinformation about how these diseases are spread, it will be the result of well-meaning advocacy groups bringing attention to the legislation.”

Commentary Sexual Health

Used Condoms on Playgrounds Are Gross, But Not Cause for Alarm

Martha Kempner

Last week, a boy in Colorado picked up a used condom on his school’s playground and put it into his mouth. Though this might not seem like news, media outlets across the country, and even internationally, have focused on his risk of acquiring a sexually transmitted infection.

Last week, a Colorado boy picked up a used condom on his school’s playground and put it into his mouth, apparently thinking it was a balloon. Though this might not seem like news, media outlets across the country, and even internationally, have reported on it extensively. The stories have all focused on his supposed risk of HIV and other sexually transmitted infections (STIs), the years of testing and treatment he might have to face, and the school’s failure to protect him. However, few have checked in with health professionals to see what the danger really was so that other parents could be put at ease about this gross—but relatively common—situation.

The incident was first discussed as the lead story on Denver’s ABC affiliate, KMGH. The anchors introduced the piece by describing it as “any parent’s worst nightmare. An 8-year-old boy finds a used condom on a playground. That little boy is now being tested for [sexually transmitted diseases] after putting it in his mouth thinking it was a balloon.” The rest of the story, which featured a field reporter walking slowly through the playground and speaking to the boy’s mother (who hid behind a tree and only used her first name), was big on melodrama and blame for the school district, but short on statistics about STIs or the student’s actual risk.

The articles that followed didn’t do a much better job balancing fear and fact. The Huffington Post, for example, ran a piece about the situation with a teaser calling this “a potential life-threatening mishap.” It then compared the situation to one in which a child got herpes from a day-care provider and used an irrelevant quote from a pediatrician who said, in reference to that case, that the herpes virus is easily spread. Most articles seemed to rely on the boy’s mother’s quotes from the original television story, in which she said that her son is at risk for HIV, hepatitis C, herpes, chlamydia, and gonorrhea; that it will take a year to be sure that he hasn’t been infected; and that he might be in for “a lifelong [process], millions of dollars in medical bills.” And many outlets pointed out that the school’s spokesperson would not admit fault.

Overall, it seemed like the goal was to alarm rather than educate.

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In reality, however, STIs are rarely transmitted through casual contact of any kind—like toilet seats, handshakes, or shared utensils. And even picking up a used condom is not particularly hazardous.

As always, it’s hard to calculate exact risk of STI transmission. Given that we don’t know the exact circumstances of the boy’s exposure, it would be foolish to say there was absolutely no danger. There are many factors that would contribute to his chances of getting a disease: how long the condom had been on the playground; how much semen was in it; whether it had dried; the position he held it in when he put it to his mouth; and whether he had any open sores on his lips or mouth.

Mostly, though, the determining factor would be whether the semen contained any bacteria or viruses, the concentration of such germs, and how well they hold up outside the body.

HIV, for example, is relatively fragile outside the body. Some studies have found that under laboratory-controlled conditions it can live outside the body for a few days or even weeks in blood, but it is killed by heat, sunlight, and humidity. No studies have ever been done on how well it survives outside the body in semen. However, according to AIDS Map, an international clearinghouse of HIV and AIDS information, “studies which have sought to culture HIV from semen in the laboratory have often found it difficult to do so, indicating the low quantities often present in semen.” More importantly, “HIV transmission has not been reported as a consequence of contact with spillages of blood, semen, or other body fluids.” In other words, according to this organization’s research, no one has ever reported getting HIV from the contents of a used condom.

The Centers for Disease Control and Prevention (CDC), furthermore, does not discuss used condoms, but it does say that exposure to thrown bodily fluids (including blood and semen) has a negligible risk for HIV transmission. The truth is that even direct oral contact with HIV is not much of a threat for transmission: The CDC estimates that the infection rate for unprotected oral sex with an infected partner, whether giving or receiving, is too low to calculate.

There is less precise information available for other STDs, but most do not do well outside of a human host. Gonorrhea, for example, thrives in warm, moist places and therefore cannot live for more than a few seconds outside the body. Similarly, herpes is thought to live for only ten seconds outside the body and transmission typically requires direct contact between infected and non-infected skin. Hepatitis C, on the other hand, can survive outside the body at room temperature for up to three weeks. Again, though, the CDC says that it is not spread by casual contact such as sharing eating utensils, breastfeeding, hugging, kissing, holding hands, coughing, or sneezing. It is also not spread through food or water. In fact, the CDC reports that even sexual activity poses a very low risk of transmission, as the virus is primarily spread by direct blood-to-blood contact such as sharing needles.

The child’s mother is, of course, right to have him tested for all STIs just in case, as some of these diseases can be cured and all can be treated if there is an infection. I am a little confused by her suggestion that the testing process would take a whole year—testing for most STIs can be done right after exposure. When it comes to HIV, the time between infection and possible blood detection is three months at the longest, though newer tests can find it much sooner. Peace of mind is important, and follow-up tests can put lingering anxiety to rest, but it seems inaccurate to suggest it will take a year to know if he’s been infected with an STI. 

As I said earlier, used condoms on the playground are certainly gross. They are also, unfortunately, fairly common (I’ve disposed of more than a few myself), and not cause for panic. The young boy involved is likely embarrassed—especially if he knows his story has gone international—but he should not be afraid. And any parent who sees or learns of their own child picking up a used condom should also not be. We should, however, probably remind our children not to put things they find on the ground in their mouths: Other germs, like those that cause the common cold and the dreaded stomach flu, can survive outside the body for awhile and live on objects. So, even if it’s not a condom, it’s best to leave it where it is. 

Analysis Human Rights

Stigma Drives Workplace Discrimination Against Workers Living With HIV

Annamarya Scaccia

Deliberate workplace discrimination based on a worker's HIV-positive status is a pervasive issue for the more than 1.1 million people living with HIV in the United States.

Barb Cardell only discovered she was HIV-positive a few weeks before she was fired from her job as an executive chef.

It was 1993, and the then 29-year-old Cardell had been infected for two years without knowing. It would be years before the U.S. Food and Drug Administration would approve the first protease inhibitor, a now widely used antiviral drug to treat advanced HIV infection. Since life expectancy in those days was short for people living with HIV, doctors gave her only five years to live.

For the most part, Cardell was open about being HIV-positive. She didn’t know why she shouldn’t be. But a few days after discovering her status, her employers at the Wisconsin restaurant where she worked told Cardell they didn’t want her to talk about her status because of “the fear and stigma about eating food somebody who is HIV-positive cooked,” she said.

She was fired within a month.

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The situation devastated Cardell—so much so that she was too traumatized to look for new work. “It was really hard. I loved being in a restaurant. I expected to open my own restaurant,” Cardell, who is now board chair of Positive Women’s Network-USA, a women-focused HIV advocacy group, told Rewire.

She said she learned “fairly quickly” after discovering she was HIV-positive that her status would prevent her from obtaining the health and life insurance needed to secure a business loan. “Not only did I lose a job I loved, but I also lost what I had been planning on [as] my next adventure,” she said.

Pervasive Workplace Discrimination

Cardell says her termination is a case of deliberate workplace discrimination based on her HIV-positive status. Such discrimination is a pervasive issue for the more than 1.1 million people living with HIV in the United States, occurring since the earliest days of the HIV/AIDS epidemic, says Catherine Hanssens, executive director of the Center for HIV Law and Policy.

Like Cardell, people who are HIV-positive from “every imaginable kind of job”—including health care, food service, and law enforcement—have experienced workplace discrimination in one form or another, Hanssens says.

For instance, recently the U.S. Equal Employment Opportunity Commission (EEOC) filed suit against Maxim Healthcare Services, a multi-state health-care and wellness service agency, on behalf of an HIV-positive man identified as John Doe. According to the EEOC, Maxim Healthcare violated the Americans With Disabilities Act (ADA) when it refused to hire Doe to sit with patients at a Pittsburgh Department of Veterans Affairs medical facility because of his HIV status.

“People have been worried about their place of employment finding out that they’re positive because people are fired, people are not hired, people are stigmatized in the workplace, their status is shared inappropriately,” said Cardell. The John Doe case is “sadly more common than it is uncommon.”

The case against Maxim Healthcare is one of 25 the EEOC has filed involving disability discrimination on the basis of HIV and AIDS over the last ten fiscal years—and one of four still in litigation, according to EEOC data obtained by Rewire. Between 1997 and 2013, the EEOC received more than 3,900 complaints alleging ADA violations based on a person’s HIV status—a number of which were resolved before reaching the litigation stage.

Nearly a third of those complaints have resulted in merit factor resolutions, which include settlements, withdrawals with benefits, successful conciliations, and unsuccessful conciliations. The remaining charges were either closed for administrative reasons or the EEOC found no reasonable cause.

The majority of EEOC lawsuits filed involve employees who were terminated from their position after the discovery of their HIV-positive status; the second most common charge is the refusal to hire due to a plaintiff’s status, the EEOC data show. Big name, multimillion-dollar companies are among the defendants: Butterball, Popeye’s Chicken, Kaiser Permanente, a McDonald’s franchise, and Dollar General, for instance.

“If you look back at cases going back to the [1980s], and staying within the current decade, you see people who have lost their job cleaning and taking care of the produce section in a supermarket or lost their job being a dental technician” because they were HIV-positive, Hanssens said.

According to research culled by Positive Women’s Network-USA from a National Working Positive Coalition survey, of the 84 percent of HIV-positive respondents who were employed at the time of their diagnosis, 81 percent reported losing employment. Of that 81 percent, 64 percent reported that their HIV status had played a role in their lost of employment.

“An Unfounded Phobia”

Despite the overwhelming body of HIV research over the last few decades, inaccurate myths continue to persist about the disease—which disproportionately affects Blacks, Latinos, transgender women, and gay and bisexual men of all races and ethnicities in the United States. It’s these myths, driven by “an unfounded phobia” of HIV transmission and HIV-positive individuals, says Hanssens, that are at the center of workplace discrimination against people living with HIV.

The range of “justifications” cited by employers for discriminating against people living with HIV, based on their HIV status, is sweeping, says Cardell. Among the reasons: an HIV-positive person is too expensive to provide insurance coverage to, they may miss too much work for medical issues, or fellow workers are uncomfortable working with an HIV-positive person.

“Just awful discriminatory stuff has been cited,” said Cardell, “and people think that is something that justifies them choosing not to hire somebody who is HIV-positive.”

There’s also the worry—an unfounded one—that an HIV-positive worker may infect others through medical equipment or handling food. According to the Centers for Disease Control and Prevention (CDC), only certain bodily fluids can transmit HIV: blood, semen and pre-seminal fluid, vaginal secretions, and breast milk.

“The common denominator … is a gross misunderstanding or fear on the employer’s part about the actual ways HIV is transmitted, the risk that HIV will be transmitted, and what it means to live with HIV,” Hanssens said. “The likelihood that you will spread HIV while cutting lettuce is equivalent to the likelihood that you will spread cancer by cutting lettuce. It just won’t happen. It can’t happen.”

What it means to live with HIV has changed dramatically over the last two decades, thanks to the widening availability of antiviral drugs and antiretroviral therapies used to treat and manage the disease. For example, a 20-year-old person living with HIV in the United States or Canada who is on treatment can expect to live into his or her early 70s—a life expectancy nearing that of the general population—according to recent research.

Most HIV-positive people are now able to work and live “really healthy” lives, says Cardell. But since being open about their HIV status at work could threaten their economic livelihood, HIV-positive people often will not advocate for themselves and their rights, she says.

That’s because much of what is lost because of workplace discrimination—financial stability and access to quality health care and safe housing—are the same socioeconomic factors that drive the inextricable link between poverty and the prevalence of HIV infection.

Recent CDC statistics show that the prevalence of HIV among people living below the poverty line is two times greater than those living above it (2.4 percent, compared to 1.2 percent), with the highest HIV rates among people with an annual household income of less than $10,000.

Treatment for HIV is expensive; it can range from $2,000 to $5,000 a month, with the majority spent on antiretroviral medications. Without insurance or access to medical benefits programs, the exceeding costs puts care out of reach for many people living with HIV.

Hanssens notes that HIV-positive workers who are in low-wage positions are most affected by workplace discrimination in terms of both economic security and judicial recourse. For low-income HIV-positive people, obtaining the legal counsel necessary to fight workplace discrimination may either be financially out of reach or inaccessible through community legal services, which have been “radically defunded” over the years, she said. (There is no cost to filing an EEOC complaint, nor is legal counsel needed to do so. There are also no fees if the EEOC decides to litigate a case on a plaintiff’s behalf.)

“Many of the structural barriers [that put people] at risk for HIV in the first place” keep them from fighting back against workplace discrimination, said Cardell.

That’s why Cardell considers John Doe, the plaintiff in the Maxim Healthcare case, a “hero.” By fighting back against workplace discrimination, despite the blocks stacked against HIV-positive workers, he “gives rise to hope for so many other positive people to a) think that they could go ahead and get a job, and b) that they’re HIV status doesn’t matter.”

“In fact, most times people are applying for jobs where their HIV status doesn’t matter,” Cardell said. “But [employers] make it about that. That’s bad science.”