Communicable diseases can be a serious, and sometimes life altering issue that occurs in schools. As youth tend to be actively social, the risk of communicable diseases spreading can be great without school intervention, and active prevention. Knowing this, school districts have reserved specific rights to prevent certain communicable diseases from spreading. However, school districts must tread a fine line, as students with certain illnesses such as HIV or AIDS are protected from discrimination under federal law.
If student shows symptoms of any communicable or infectious disease that is reportable under the health law, like the Zika virus, a school district is bound by the law to exclude that student from school and send him or her home immediately. The director of school health services must then take steps to immediately notify a public health agency of the illness (§906; 8 NYCRR § 136.3(h); NYS Education Department, Office of Student Support Services, Immunization Guidelines for Schools (revised Mar. 2016)).
It’s important to note that these types of exclusions from school are not considered to be discriminatory under federal law, because schools are not forced to allow an individual to be intertwined in their programs or services when they pose a direct threat to the health and safety of others (28 CFR § 35.139). Furthermore, if a student is returning to school from an illness or an unknown cause, the school also reserves the right to have the director of school health services examine the student if he or she returns without a certificate from a health professional (§906; 8NYCRR § 136.3(h); Immunization Guidelines for Schools). To further aid in the prevention of spreading such illnesses, school health services directors may also perform evaluations of teachers, other school officials, and school buildings as they deem necessary to protect other students and staff from communicable diseases (§906; 8 NYCRR § 136.3(i); Immunization Guidelines for Schools).
With active prevention of communicable and often curable diseases, there is a line that is drawn. Schools may not discriminate against those who have been diagnosed with HIV or AIDS, as those who live with these illnesses are protected under the Americans with Disabilities Act (ADA; 42 USC § 12132). In a case taken to the U.S Supreme Court, U.S Justices ruled that even asymptomatic HIV infection is regarded as a disability, and those who experience no symptoms are, too, protected by the American Disabilities Act (Bragdon v. Abbot, 524 U.S. 624 (1998)), therefor they cannot be excluded from school because of their health challenge.
Schools cannot exclude students with HIV or AIDS from school, or exclude them from interacting with other students, as it would be a direct violation of discrimination laws in place to protect them. Furthermore, the NYS Department of Health does not consider AIDS a communicable disease, and it’s exclusion from this category has been upheld by the New York Court of appeals (N.Y. State Soc’y of Surgeons v. Axelrod, 77 N.Y.2d 677 (1991)).
Schools also cannot disclose information about students with HIV or AIDS. Current law and regulations strictly limit the disclosure of such confidential and personal information about a person with HIV or AIDS (Pub. Health Law Article 27-F; 10 NYCRR Part 63). Generally, any information that is disclosed must be done with the consent of the student, or parent who signs off on the release of such sensitive information (Pub. Health Law § 2782; 10 NYCRR § 63.5(a)). One instance where the school may disclose information on a student who has HIV or AIDS is if a court issues an order requiring the release of such information. For this to occur, there must be the presence of a clear and imminent danger to another person who unknowingly may be at significant risk as a result of contact with the student (Pub. Health Law § 2785(2)(b); 10 NYCRR § 63.6(a)(12),(b)(4)). Even in this instance, the information on the student’s health condition will only be disclosed to the person or persons identified in the court order, and only for the reasons provided in the court order (Pub. Health Law § 2785(6)). An example would be if school officials were aware of a male student’s HIV status, and the student had a girlfriend who was unaware of his HIV status. School officials would be justified in notifying the student’s girlfriend, or her parents, since there is a possibility of her engaging in unprotected sexual contact with him. However, this disclosure can only occur if the school has obtained a court order to do so. They may not release this information at their own discretion.
Schools can, however, prevent the spreading of communicable diseases by teaching their students and staff how to prevent becoming infected, or prevent spreading the virus, disease, or illness. They must construct a written exposure control plan that is provided to each employee that properly trains how to deal with bodily fluids and other materials, as well as the keeping of accurate medical and training records. In addition, schools can also elect to make condoms available, however, they must have parental consent to actually distribute condoms to individual students (Alfonso v. Fernandez, 195 A.D.2d 46 (2d Dep’t 1993), appeal dismissed without opinion, 83, N.Y2d 906 (1994)), as in some cases, passing out condoms encourages students to engage in sexual activity, an act that is condemned by many parents who’s child is sexually active at such a young age.
Schools take preventative measures to prevent the spreading of communicable diseases. Though they take all preventative measures, which include proper training on how to handle bodily fluids, and wear protective gear, such as gloves or face masks when appropriate, they also must be mindful of those who have such health challenges like HIV or AIDS. If schools are not sensitive to students who deal with such illnesses, they can find themselves violating a student’s disability and discrimination rights.
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