Is it legal to discriminate due to the medicine used to treat a medical condition? I will present two different scenarios. Lets say Bob has PTSD from his time in the military. He wants to become an FBI agent. Here are the following requirements from the FBI to qualify; - Must be a U.S. citizen. - Must be able to obtain a Top Secret clearance. - Must complete form FD-887, Request for Access to Sensitive Compartmented Information (SCI). - Must pass an FBI polygraph examination. - Must pass an FBI-administered urinalysis drug test. - Must be in compliance with the FBI Employment Drug Policy: - No use of marijuana within the last three years. - No use of any other illegal drug in the past 10 years. - No selling, distributing, manufacturing or transporting of any illegal drugs. - No use of a prescription drug or a legally obtainable substance in a manner for which it was not intended within the last three years. - Must never have been convicted of a felony. - Must not be in default on a student loan insured by the U.S. government. - Must be registered with the Selective Service System (males only, exceptions apply) Scenario 1) Bob is prescribed a controlled narcotic for his PTSD condition. Scenario 2) Bob is prescribed medical marijuana for his PTSD condition. Is it legal to discriminate employment based off prescribed medicine in either situation? If the employer wasn't the FBI, does it change the right to discriminate?
1) Bob could disclose the PTSD condition and seek accommodation for it (in reality, controlled narcotics aren't actually used to treat PTSD but it isn't hard to imagine a situation where another controlled substance, e.g. ketamine, was used to treat this or some other Americans with Disabilities Act recognized disability and the absence of that disability was not a bona fide qualification of the job). The legal analysis in the case of the FBI (a federal government civilian civil service employer subject to special rules applicable to governmental employers), and a private employer, is not exactly the same, but it ends up in the same place. 2) Medical marijuana is, as a matter of federal law an oxymoron, because it is a Class I controlled substance that as a matter of law (contrary to reasonable facts) has no medical applications, and the FBI is charged with enforcing this law (among other agencies), so medical marijuana would legally disqualify someone from FBI employment. In Colorado which has legal under state law medical marijuana, employers have been allowed to discriminate based upon medical marijuana use because an employer is at a minimum allowed to treat federal law as enforceable. It is conceivable that some U.S. state other than Colorado which allows medical marijuana at the state level might reach a different conclusion as a matter of state law on the employment discrimination point, but potentially, the employer could appeal to the U.S. Supreme Court on a pre-emption argument so it would be a tenuous legal position to take.
ADA is about &quot;disabilities&quot;, and not being vaccinated is not a disability under the law. Applicability of HIPAA is very complex and unclear. The Privacy Rule refers to and restricts the actions of Covered Entities. Healthcare providers and insurance companies are Covered Entities. The regulation 45 CFR 160.103 defines &quot;covered entity&quot; as (1) A health plan. (2) A health care clearinghouse. (3) A health care provider who transmits any health information in electronic form in connection with a transaction covered by this subchapter 45 CFR 164.512 lists instances where authorization to disclose is not required, saying that &quot;A covered entity may use or disclose protected health information without the written authorization of the individual&quot;. The employer is not likely to be a &quot;covered entity&quot;, so these permissions are irrelevant. Furthermore, included in this section is a provision where disclosure is allowed in the case of (v) An employer, about an individual who is a member of the workforce of the employer with various conditions following such as (A) The covered entity is a covered health care provider who provides health care to the individual at the request of the employer: (1) To conduct an evaluation relating to medical surveillance of the workplace; or (2) To evaluate whether the individual has a work-related illness or injury However, these permissions apply to covered entities, not employers. (&quot;Work-related&quot; is not defined, but having a dangerous contagious disease does clearly relate to the workplace, thus it would be reasonable but not guaranteed to consider such a disclosure to be connectable to this section). 45 CFR 164.510 says that A covered entity may use or disclose protected health information, provided that the individual is informed in advance of the use or disclosure and has the opportunity to agree to or prohibit or restrict the use or disclosure, in accordance with the applicable requirements of this section §508, covering required authorization (&quot;explicit yes&quot;) says Except as otherwise permitted or required by this subchapter, a covered entity may not use or disclose protected health information without an authorization that is valid under this section. There is no applicable provision whereby the proposed employer policy would clearly expose the employer to legal sanctions, since HIPAA does not purport to regulate everybody, only those entities where Congress authorized it to do so, via the concept of a &quot;covered entity&quot;. Furthermore, the employer is not directly revealing any personal medical information: the employee (the other employee) is. A vaccinated employee is allowed to wear a sticker that says &quot;I was vaccinated&quot;. An imaginable application of HIPAA to vaccinated employees would be a policy of requiring a vaccinated employee to advertise that they were vaccinated. One can reasonably guess that a person who does not wear a mask, given such a policy, has been vaccinated, but it is not a reasonable inference that a person who wears a mask has not been vaccinated (many vaccinated people continue to wear masks out of an abundance of caution). There is no legal basis for penalizing an employer who allows vaccinated employees to do things that weakly suggest that other employees have not been vaccinated.
Hospitals in the US that receive federal funding (e.g., Medicare, Medicade, FCHIP, etc.) are required to provide language services under Title VI of the Civil Rights Act of 1964, 52 U.S.C. §2000d et seq to those persons of limited English proficiency who receive services. This US Government Department of Health &amp; Human Services page notes: Persons with limited English proficiency must be afforded a meaningful opportunity to participate in programs that receive Federal funds. Policies and practices may not deny or have the effect of denying persons with limited English proficiency equal access to Federally-funded programs for which such persons qualify. Many HHS documents address this requirement. An overview can be found in the HHS Language Plan (2013), which contains sections requiring translation of oral communications as well as written documents when the patient has limited English proficiency. Given the pervasive presence of these federal programs in the provision of health care in the US, most (if not all) US hospitals will be required to comply and provide translation services.
Generally, no. Legislatures pass laws. The fact that someone else knows more about the thing they're passing laws about is utterly irrelevant -- the power to make laws is given to the legislature, not to experts. If the legislature thinks experts should make the rules on something, they can delegate (this is why the FDA approves medicine rather than Congress), but the legislature of a state generally has the power to pass any law that is not unconstitutional. Your analogy to paper money is a poor one: that's a federalism thing, not an expertise thing. Congress has established a system of paper money, and states can't interfere with that. It's not that the Fed thinks paper money is good, it's that Congress said paper money shall be a thing. That could stop a state from banning an FDA-approved drug; however, since marijuana is illegal under federal law, it would be odd to conclude that banning it at the state level as well is preempted. Legislators aren't inherently experts on anything (except being elected). That doesn't matter. They have the authority to pass laws, even if those laws directly go against the views of people who are recognized experts in the area. You appear to think there must be a judicial remedy against bad policy. You would be wrong. The role of the courts is not to decide what policies are good or bad; they are concerned only with what is legal. Deciding what policies are good or bad is a matter for the democratically elected representatives of the people, or for the people themselves in states with ballot questions. It is not the job of the courts.
BC employers are required to give workers three days of unpaid personal illness &amp; injury leave per calendar year. However, this protection only applies to workers who have held a job for more than 90 days. If you have not held the job for that long, it does not appear that any protections apply to you. Note that (as of March 2021) there are separate rules concerning COVID-19 exposure &amp; illness. There may also be protections that apply to you if you are a union member, or if you work in a federally regulated job (banks, national trucking companies, airlines, and some others.)
The Equality Act (2010) lists the following protected classes (emphasis mine): age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; sexual orientation. It is unlawful for businesses to discriminate against anyone, in the goods or services (or physical access) that they offer, based on any of those characteristics. Some disabilities may prevent people from wearing masks, and those people cannot be discriminated against. I couldn't find a source in the law that says this explicitly, but according to the Equality and Human Rights Commission there is no legal requirement for people who have disabilities to be able to prove that they are disabled in order to receive accommodations for their disabilities. While you could, theoretically, ask people to prove that they have a disability if you don't believe them, you'd basically just be setting yourself up to have to pay a bunch of money in compensation when you eventually run in to somebody who actually does have such a disability, and doesn't have proof with them, who then takes you to court for discrimination and wins.
The cited provision is: A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex. This language originates in the Sex Discrimination (Gender Reassignment) Regulations 1999. This statutory instrument was made in response to a 1996 decision of the European Court of Justice (P v S and Cornwall County Council, C-13/94) that Council Directive 76/207/EEC of 9 February 1976 , regarding equal treatment of men and women, also covered discrimination on the grounds of gender reassignment. The regulations were made in order to bring domestic law up to date with the EU requirement, by amending the Sex Discrimination Act 1975. The definition at the time, found in the amended section 82, was: &quot;gender reassignment&quot; means a process which is undertaken under medical supervision for the purpose of reassigning a person’s sex by changing physiological or other characteristics of sex, and includes any part of such a process So the idea of &quot;other characteristics&quot; or &quot;other attributes&quot; comes from the 1999 version of the law. I expect that the change to &quot;attributes&quot; is simply because the Equality Act 2010 uses the term &quot;characteristic&quot; to mean something else, as it consolidates many different regimes about discrimination on the basis of sex, race, disability, etc., all of which are called &quot;characteristics&quot;. The more recent text removes the part about &quot;medical supervision&quot;, and explicitly includes people at any stage of transition. Explanatory Notes to the 2010 Act give the example: A person who was born physically female decides to spend the rest of her life as a man. He starts and continues to live as a man. He decides not to seek medical advice as he successfully ‘passes’ as a man without the need for any medical intervention. He would have the protected characteristic of gender reassignment for the purposes of the Act. (These notes are not binding in law but they do give a good idea of what the drafters meant to say. The concept of 'passes' is also not the most sensitive language to bring in, since trans people do not necessarily want to measure themselves by their ability to pass undetected, and may present differently in different contexts.) The example shows that someone can have the protected characteristic without having, or contemplating, any change to their body. So from this example, the other attributes of sex would include all those ways in which the man &quot;continues to live as a man&quot;. From general knowledge of trans men, that could include using a masculine name and pronouns; wearing traditionally-male clothes; wearing a binder, baggy clothing, padding in the crotch, or other ways to suggest a more masculine than feminine body; having a traditionally-male haircut; using traditionally-masculine body language; pitching the voice lower; and so on. The situation for trans women would be parallel. These things are all attributes of sex, in that our society abounds in stereotypes of what is a &quot;manly handshake&quot;, or a &quot;girly drink&quot;, or otherwise associated with a particular sex. They are to do with behaviour more than the body.
Every State in the union has some form of involuntary mental health hold. Regardless of whether or not the patient claims it was an accident, it is incumbent upon the hospital or facility where the individual is held (which is typically at least 72 hours) to do an in-depth analysis of whether the person is a danger to themselves or others. While in this scenario it may've been an inadvertent overdose, the empirical evidence suggests it could have been intentional as the practitioner cannot see into the thoughts and motivations behind the patient's actions. Even taking the patient at face-value, addiction to the extent of overdose is also a mental health issue, which may cause a person to be a danger to themselves. From a clinical perspective, it is much more likely than not that one of the two scenarios occurred, versus a truly mistaken overdose. One would need to mistake their actions numerous times in a day to take so much as to overdose. If you look at it from the inverse perspective, if the facility failed to keep a person who'd just overdosed, or the first responder failed to initiate a hold and the person later died, minimally they would be liable if sued by the family in an action for wrongful death. The unfortunate facts are that if a person was set on committing suicide, it unlikely they would be forthcoming with that fact, for this very reason (the mandatory hold), so a person's word cannot be the determining factor. Even if someone was not intentionally trying to take their life, having taken enough Xanax to cause medical overdose would suggest the potential that even if not suicidal, the individual was at a minimum abusing the medication by taking much more than prescribed (or in a way that is contraindicated - such as with alcohol or other depressants) and potentially suffering from benzodiazepine addiction. Either way, if the hold was not initiated or cut short - and then someone ended up dying from an overdoes - the responsibility and potential liability is the same. A person who is suicidal can reassess what may be a snap decision, or have a chemical imbalance stabilized, or a severe addiction identified in that amount of time. For the person who ctually takes so much medication as to mistakenly cause overdose, this is certainly inconvenient; however, 72 hours is a short time in the grand scheme of things to potentially save a life. The law will nearly always err on the side of safety and prevention.