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1993 Tennessee Attorney General Reports and Opinions 1 (1993)

handle is hein.sag/sagtn0131 and id is 1 raw text is: OPINIONS OF THE ATTORNEY GENERAL OF TENNESSEE Published by Authority of Chapter 276 Public Acts of 1971 April, 1993 93-35 AIDS: A hospital can probably require all non-emergency patients seeking admission to sign a pre-testing waiver to authorize the hospital to perform a confidential HIV and hepatitis test in the event a health care provider is exposed to the patient's blood or bodily fluids, and can refuse to admit a non-emergency patient if the patient refused to sign. However, a hospital's refusal of emergency services to a patient on this basis would likely violate federal and state law. Furtheimore, refusal of admission, whether on an emergency or nonemergency basis, to a known HIV, AIDS or hepatitis-infected individual would likely violate federal and state anti-discrimination laws. Depending on the particular facts, a hospital enforcing such a condition of admission by means of denial of services could be liable to the patient upon a variety of causes of action, including but not necessarily limited to actions based upon the Emergency Medical Treatment and Active Labor Act, Section 504 of the Rehabilitation Act of 1973, the Americans With disabilities Act and causes of action in tort. The General Assembly has the authority to statutorily limit the liability of a hospital to a patient refused admission, where such liability is predicated upon state law. However, the General Asembly cannot statutorily limit liability based upon federal law where Congress has preempted the field. Nor can it limit liability based upon violation of constitutional rights. 29 U.S.C. §794, 42 U.S.C. §1395, 42 U.S.C. SS12101-12213; T.C.A. SlO-7-503-504, S29-26-118, S50-3-201, S68-10-101, 568-11-213, S68-11-222, S68-11-301-304, S68-11-701-702, S68-140-301. 93-40 ANERICANS WITH DISABILITIES ACT: The Americans with Disabilities Act does not require the state to adopt broad-based non-smoking policies with regard to employees. It also does not require a broad-based non-smoking policy regarding visitors to state buildings. The evaluations with regards to policies for state employees and visitors should be made on a case-by-case basis. There is no conflict with the Tennessee law requiring an indoor place which is smoke free and Tennessee or federal statutes dealing with safe working environments. T.C.A. §4-4-121, §50-3-105.

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