Address Privacy and Rights Violation Caused by Education Code §87408 (2011)

Spring
2019
Resolution Number: 
03.01
Contact: 
Category: 
Diversity and Equity

Whereas,Hiring procedures for new faculty is an academic and professional matter (Education Code §87360[b]), and the Americans with Disabilities Act of 1990 (ADA) [1] prohibits employment discrimination on the basis of disability, and the U.S. Equal Employment Opportunity Commission (EEOC) has determined that individuals with HIV/AIDS meet the definition of people with disabilities [2];

Whereas, Revisions to Education Code §87408 (2011) had the effect of broadening the scope of the law from control of the communicable disease tuberculosis to reflect the following:

(a) When a community college district wishes to employ a person in an academic position and that person has not previously been employed in an academic position in this state,the district shall require a medical certificate showing that the applicant is free from any communicable disease, including, but not limited to, active tuberculosis, unfitting the applicant to instruct or associate with students. The medical certificate shall be submitted directly to the governing board by a physician and surgeon licensed under the Business and Professions Code, a physician assistant practicing in compliance with Chapter 7.7 (commencing with Section 3500) of Division 2 of the Business and Professions Code, or a commissioned medical officer exempted from licensure. The medical examination shall have been conducted not more than six months before the submission of the certificate and shall be at the expense of the applicant. A governing board may offer a contract of employment to an applicant subject to the submission of the required medical certificate. Notwithstanding Section 87031, the medical certificate shall become a part of the personnel record of the employee and shall be open to the employee or his or her designee.

(b) The governing board of a community college district may require academic employeesto undergo a periodic medical examination by a physician and surgeonlicensed under the Business and Professions Code, a physician assistant practicing in compliance with Chapter 7.7 (commencing with Section 3500) of Division 2 of the Business and Professions Code, or a commissioned medical officer exempted from licensure,to determine that the employee is free from any communicable disease, including, but not limited to, active tuberculosis, unfitting the applicant to instruct or associate with students. The periodic medical examination shall be at the expense of the district. The medical certificate shall become a part of the personnel record of the employee and shall be open to the employee or his or her designee.(Amended by Stats. 2010, Ch. 512, Sec. 9. (SB 1069) Effective January 1, 2011.);[3]

Whereas, Thelist of communicable diseases provided by the California Department of Public Health (CDPH) [4]is quite extensive and includes diseases that are not at risk of transmission in the teaching and learning environment, including HIV/AIDS, sexually transmitted diseases (STDs), and others; and

Whereas, The act of requiring a medical certificate showing that the applicant is free from any communicabledisease such as HIV/AIDS constitutes a violation of workplace rights and civil rights under the Americans with Disabilities Act, and requiring the same for STDs constitutes a grave violation of privacy, and such violations expose districts to litigation;

Resolved, That the Academic Senate for California Community Colleges work with system stakeholders to remove all language from Education Code §87408 that is discriminatory towards individuals who may be afflicted with communicable diseases that are not at risk of transmission in the teaching and learning environment, including HIV/AIDS, sexually transmitted diseases, and others.

Acclamation


1. ADA.gov United States Department of Justice, Civil Rights Divisionhttps://www.ada.gov/2010_regs.htm
2. U.S. Equal Employment Opportunity Commissionhttps://www.eeoc.gov/eeoc/newsroom/wysk/hiv_aids_discrimination.cfm
3. http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCo....
4. California Department of Public Health.Communicative Disease Control.https://www.cdph.ca.gov/Programs/PSB/Pages/CommunicableDiseaseControl.aspx