Miami Herald - Friday, November 15, 1985
Paul Saltzman, Herald Staff Writer

Duff, 27, refused. He was fired.

"Nobody has any right to tell me that I have to take a test like that, and if it meant losing my job, OK," he said. "I had to take a stand. I didn't want to see anybody else go through what I had to go through."

Now Duff's case is headed for court in what experts say may become the first legal challenge to the use of the AIDS exposure test.

The controversy over testing for AIDS in the work place is not likely to be diminished by guidelines announced Thursday by the U.S. Department of Health and Human Services, recommending against routine screening of workers for presence of the deadly virus.

The federal health agency also recommended against employment restrictions on individuals who test positive as carriers of the AIDS virus. Neither restriction is needed because there's no evidence that the disease is spread through casual contact, HHS said.

The test was developed to keep blood tainted with the AIDS virus from being used in transfusions. But, around the nation, it is being used with growing frequency to try to identify potential AIDS carriers in the work place -- something the test's developers and the federal government never intended. And that's raising fears that some people may be shunned because of a disease they probably will never develop.

"It is not a diagnostic test," said Dr. Charles Konigsberg Jr., Broward County's public health director. "And the result of it being used indiscriminately may be that somebody's damn life might get ruined."

The test could give false positive readings in as many as five of six cases, according to the American Red Cross, which has done more of the tests than any other agency.

Even in cases where exposure is certain, only about one in 10 of those people will actually develop AIDS within five years, according to the federal Centers for Disease Control. Perhaps another two in 10 will develop the fever, night sweats and swollen glands that characterize AIDS-related complex, which may be a precursor to AIDS.

Recent examples of AIDS testing that trouble medical experts and civil libertarians abound:

* In Dade County, judges have ordered testing for a prostitute and for all youths sent to the county's juvenile detention center.

* In Broward County, a homosexual man was fired from his job after he showed positive on an employer-ordered test, according to the Rev. Fred Tonaldo, co-director of the AIDS Center One counseling and referral center in Fort Lauderdale.

* In Fort Lauderdale, a store clerk told a co-worker he had taken the test. Word got back to his boss, and he was fired last month before anyone knew the test result.

* In Collier County, a commissioner asked the county's top public health official last week whether it would be useful to require all food-service workers to be tested. A similar proposal in Dade County died in the face of opposition from public health officials. They said it would do nothing to protect public health because AIDS is spread through sexual contact or the trading of body fluids.

* In Hollywood, the city government considered testing all new employees last summer for exposure to the AIDS virus. Under pressure from medical authorities and homosexual rights groups, the city backed down.

* In Dallas, ENSERCH Corp., an energy business with 24,000 employees, last month ordered 22 food-service workers to be tested or be fired. Company spokesman Howard Matson defended the decision, saying there's no proof AIDS cannot be spread through food.

* In Texas, a hospital cafeteria worker was unknowingly tested when he contributed to a blood drive, said Thomas B. Stoddard, a lawyer with the American Civil Liberties Union. The result was positive; he was fired.

* Nationally, two life insurance companies -- Transamerica Occidental Life Insurance of San Francisco and American General Life Insurance of St. Louis -- say they will require anyone seeking a policy of $100,000 or more to have the test.

"There may be a couple of dozen more companies that either now are testing or are about to, and a great many more that are looking into it," said Rob Bier, a spokesman for the American Council of Life Insurance and for the Health Insurance Association of America, the biggest trade groups in each field.

Donors' blood tested

During the seven months it has been in use, the main test for exposure to the AIDS virus has been administered about five million times, according to the American Red Cross.

To date, experts say employment or insurance screening has accounted for just a tiny percentage of the tests. Since April, blood from every U.S. donor has been checked before use; that accounts for the vast majority of the tests.

Also, homosexual men and intravenous drug users, who are considered at the highest risk for acquired immune deficiency syndrome, have flocked to government health clinics around the country for voluntary testing.

And now a whole new group is to be tested: the 2.1 million men and women in the U.S. military.

Demand for the test has boomed in the last month, largely, health officials say, because of the increased publicity that followed the death of actor Rock Hudson from AIDS.

In Dade, one of the nation's AIDS hot spots, "We're booked up for six weeks in advance," said Jim Rabb, the Dade County Public Health Unit's sexually transmitted disease director.

"Occasionally, we get the person who had dinner and maybe had a homosexual waiter," Rabb said. "We counsel them that they don't need to be tested, but, if they insist, we'll do it."

'Slippery slope'

Nancy Langer of the LAMBDA Legal Foundation in New York, a homosexual rights group, is among those who fear that the growing use of the test may exact a heavy toll: leaving many who will never develop AIDS out of work and without hope of getting life or health insurance.

"Personnel departments are looking at this; insurance companies are," Langer said. "We're on a slippery slope."

"I'm very worried," said Benjamin Schatz, AIDS civil rights project director for National Gay Rights Advocates of San Francisco. "When enough people do the absurd, it doesn't seem so absurd anymore."

The heart of the concern is that the test for AIDS exposure is not a reliable indicator of who will develop the disease, which strips the body of its ability to fight infection.

The basic test is known as ELISA, or enzyme-linked immunoassay, test for the human T-lymphotrophic virus III.

What the test is supposed to detect are proteins called antibodies that the blood produces to fight off any foreign body -- in this case, the HTLV-III virus.

The test is considered highly reliable for doing that, if it is done twice and if it is confirmed by another test called a Western blot.

But because it was designed as a better-safe-than-sorry way to keep AIDS-tainted blood from being transfused, it errs on the side of finding some normal blood samples tainted, said Charles Shable, chief of the AIDS laboratory for the CDC in Atlanta.

Reaction to hysteria?

Dr. John Ward, who tracks diseases for the CDC in Atlanta, described the growing use of testing as "a reaction to the whole hysteria about the disease rather than anything based on medical evidence."

In Fort Lauderdale, lawyer Merrilee Ehrlich is distributing release forms for people to carry in case of a medical emergency. The form asks that the bearer not be given any blood that hasn't been tested for exposure to AIDS.

But all blood is routinely tested.

"I want to be sure," Ehrlich said.

The concerns over use of the test have grown since the Department of Defense announced in October that it would screen all military personnel.

The military voiced two concerns. One was that AIDS might reduce a person's immunity to the point where the vaccines routinely given everyone in the service might cause a killing infection. The other was that, in a battlefield situation, a person-to-person transfusion might be necessary, and that could spread the disease.

Those found to have been exposed are to be offered medical care and counseling and given an honorable discharge only if they develop AIDS and it incapacitates them.

"I think the military's use of the test lays the groundwork for others, in the private sector, to do the same," Langer of LAMBDA said.

One of the potentially biggest testers in private business is the insurance industry. And as insurers increasingly adopt the test, the impact spreads beyond homosexual men and intravenous drug users -- the main groups at risk from the disease.

"A single man is not going to be able to get insured without taking the test," Langer said.

Bier, of the insurance trade group, said a positive test will not be used alone to determine insurability.

"If you get a positive test on a grandmother in North Platte, Neb., you may be inclined to dismiss it," he said. "But people who fit the risk groups and who have a positive antibody result probably are going to have a difficult time purchasing new individual life or new individual health insurance."

Another concern is what happens to someone who is told he has tested positive.

"These people essentially are being asked by an employer to go out and find out if they're going to die when they may not want to know," said Gary Wood, a San Francisco lawyer and head of the AIDS legal referral panel of the 400-member Bay Area Lawyers for Individual Freedom. "That's scary."

Just what a company might do if an employee tests positive may vary. Matson of ENSERCH, the Dallas company, said, "We'll have to cross that bridge when we get to it."

Dr. Margaret Fischl, a leading AIDS researcher at the University of Miami, said that's a bridge that should be crossed now. She said that's why she opposes a plan being hatched in the Florida Legislature to require that all prisoners be tested.

"Why do it unless you have something to do with the results?" Fischl asked.

Whether private screening can be done legally at all is unclear.

For now, only two states specifically ban job discrimination against those who test positive for exposure to AIDS -- California and Wisconsin.

By limiting those who can administer the test, New York, too, has effectively blocked employment and insurance screening, said Dr. Dale L. Morse, director of the Bureau of Communicable Disease Control for the state's Health Department.

The federal government and most states already have some type of law to ban job discrimination on the basis of disability. Those laws might be used to protect those who merely test positive and those who have AIDS but can still work.

"It would appear to fit the definition of handicap or disability under those laws," said Michael Cecere, a lawyer with Jackson Lewis Schnitzler & Krupman in New York, one of the largest U.S. law firms specializing in labor law for management.

"So, unless an employer could demonstrate that the condition interfered with an employee's ability to do the job or posed a substantial harm to other employees, he could not base an employment decision on the test for exposure to AIDS," Cecere said.

To do so is to risk discrimination lawsuits, agreed Professor Arthur Leonard of New York Law School, who publishes the monthly Lesbian/Gay Law Notes.

In Florida, it's unlikely that any specific protective legislation will be filed next year, said state Sen. Roberta Fox, D-Miami, who chairs the Senate Health and Rehabilitative Services Committee.

"I don't see any level of discrimination at this point that requires immediate attention," Fox said.

Meanwhile, the first of the legal challenges to the testing has yet to come, though Duff, the San Jose electronics salesman, and others say they are likely to file suit before the year's end.

For now, Duff, an avowed homosexual, said he spends much of his time looking for work -- a task made more difficult by the news coverage of his case.

"I'm a person that likes to work," he said. "And out here in the Santa Clara Valley right now, it's real tight for jobs. I'm getting real tired of being out of work."

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