Dept. of Civil Rights: State’s ban on HIV-positive inmates working in prison food service violates law

LANSING — 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.

“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 said.

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?

Yes, 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.”