Your Rights - HIV Issues

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New Hampshire Anti-Discrimination Law

Discrimination Based on HIV Status

Does New Hampshire have laws protecting people with HIV from discrimination?

Who is protected under these anti-discrimination laws?

• People with AIDS or who are HIV-positive, even if they are asymptomatic and have no outward or manifest signs of illness.
• People who have a record of or who are regarded or perceived as having HIV.
• Under federal law, but not New Hampshire law, a person who does not have HIV, but who “associates” with a person with HIV-such as friends, lovers, spouses, roommates, business associates, advocates, and caregivers of a person with HIV.

Employment Discrimination

Adverse Treatment

What laws protect people with HIV from discrimination in employment?

What do these anti-discrimination laws prohibit?

The focus here is whether a person with AIDS or HIV was treated differently than other applicants or employees in similar situations.

The following are examples of unlawful discrimination:

• An employer may not refuse to hire a person with HIV based on fear that HIV will be transmitted to other employees or to customers.
• An employer may not refuse to hire or make an employment decision based on the possibility, or even probability, that a person will become sick and will not be able to do the job in the future.
• An employer cannot refuse to hire a person because it will increase health or workers’ compensation insurance premiums.
  

Reasonable Accomodation

What does it mean that an employer may have to provide a “reasonable accommodation” for an employee with a disability?

Persons with disabilities, such as HIV/AIDS, may experience health-related problems that make it difficult to meet some job requirements or duties. For example, a person may be exhausted or fatigued and find it difficult to work a full-time schedule.

In certain circumstances, the employer has an obligation to modify or adjust job requirements or workplace policies in order to enable a person with a disability, such as HIV or AIDS, to perform the job duties. This is known as a “reasonable accommodation.”

Examples of reasonable accommodations include:

• Modifying or changing job tasks or responsibilities
• Establishing a part-time or modified work schedule
• Permitting time off during regular work hours for medical appointments
• Reassigning an employee to a vacant job
• Making modifications to the physical layout of a job site or acquiring devices such as a telephone amplifier to allow, for example, a person with a hearing impairment to do the job.

How can a person get a reasonable accommodation?

It is, with rare exception, the employee’s responsibility to initiate the request for an accommodation. In addition, an employer may request that an employee provide some information about the nature of the disability. Employees with concerns about disclosing HIV/AIDS status to a supervisor should contact the AIDS Law Project’s Legal InfoLine in order to strategize about ways to address any such requests.

There is no fixed set of accommodations that an employee may request. The nature of a requested accommodation will depend on the particular needs of an individual employee’s circumstances.

Does an employer have to grant a request for a reasonable accommodation?

An employer is not obligated to grant each and every request for an accommodation. An employer does not have to grant a reasonable accommodation that will create an “undue burden” (i.e., significant difficulty or expense for the employer’s operation). In addition, the employer does not have to provide a reasonable accommodation if the employee cannot perform the job function even with the reasonable accommodation.

When is a “reasonable accommodation” for an employee an “undue burden” for an employer?

In determining whether a requested accommodation creates an undue burden or hardship for an employer, courts examine a number of factors, which include:

• The employer’s size, budget and financial constraints
• The costs of implementing the requested accommodation
• How the accommodation affects or disrupts the employer’s business

Employer Health Inquiries

What may an employer ask about an employee’s health?

During the application process:

Both New Hampshire law and the ADA prohibit an employer from asking a job applicant to submit to a medical exam or answer any medical inquiry until a “conditional” offer of employment is made.

For example, during the application process, an employer may not ask about:

• Any history of workers’ compensation claims or social security disability benefits.
• Whether you have ever been hospitalized or been under the care of a physician.
• Whether you have ever had any medical problems which would make it difficult for you to do your job.
• An employer MAY, however, ask whether an applicant has the knowledge, skill and ability to perform the job functions.

Under the ADA, after an employer has made an offer of employment, it may require a medical examination (but not an HIV test) solely for the purpose of determining whether the employee is capable of performing the essential functions of the job with reasonable accommodation.  There are strict confidentiality requirements on the storage of this information.
New Hampshire law allows employers, after making an offer of employment, to inquire into and keep records of existing or pre-existing physical or mental conditions. RSA § 354-A:7, III.

In addition, if the employer has more than fifteen employees, any medical exam or inquiry must meet the following requirements of the ADA:

• The employer must require the medical exam or inquiry of all applicants in the job category.
• The information must be kept strictly confidential.  It must be on separate forms and kept in a segregated file apart from a general personnel file.
• The information may not be shared with others, with a limited exception for supervisors or managers who need to be informed of necessary job restrictions or accommodations, or safety personnel who may be told if the person with a disability requires emergency treatment.
• The results of the medical examination cannot be used to withdraw the job offer unless the results indicate that the individual is not able to perform the essential functions of the job with reasonable accommodation.

Health Care Workers

How have the courts addressed fears that health care employees who perform invasive procedures, such as surgeons, will transmit HIV to patients?

The employment provisions in the ADA provide that an employee is not qualified to perform the job if he or she poses a “direct threat to the health or safety of others.” To determine whether an employee poses a “direct threat,” a court analyzes:

• The nature, duration and severity of the risk;
• The probability of the risk; and
• Whether the risk can be eliminated by reasonable accommodation.

“We hold that Dr. Doe does pose a significant risk to the health and safety of his patients that cannot be eliminated by reasonable accommodation. Although there may presently be no documented case of surgeon-to-patient transmission, such transmission clearly is possible. And, the risk of percutaneous injury can never be eliminated through reasonable accommodation … Thus, even if Dr. Doe takes extra precautions … some measure of risk will always exist …”   (Doe v. University of Maryland Medical System Corporation, United States Court of Appeals for the Fourth Circuit, April 3, 1995.)

Assessing Discrimination

How does an employee determine whether he or she has experienced discrimination?

1. Consider the difference between unfairness and illegal discrimination. The bottom line of employment law is that an employee can be fired for a good reason, bad reason, or no reason at all. A person can be legally fired for a lot of reasons, including a bad "“personality match.”" What they cannot be fired for is a discriminatory reason specifically outlawed by a statute.
2. In order to prove a discrimination claim (i.e., that you were fired, demoted, etc. because of discrimination and not because of some legitimate reason), you must be able to show the following:
   • The employer knew or figured out that you are HIV-positive or have AIDS;
   • You were qualified to perform the essential functions of the job with or without reasonable accommodation; and
   • Adverse action was taken against you because of your HIV or AIDS status and the pretextual reason given by the employer for the adverse action is false.
3. If your employer knows that you have HIV or AIDS, identify exactly who knows, how they know, and when they found out. If you have not told your employer, is there any other way the employer would know or suspect your HIV status?
4. Consider the reasons why you believe that you are being treated differently because of HIV status, including the following areas:
   • Have other employees in similar situations been treated differently or the same?
   • Has your employer followed its personnel policies?
   • Did the adverse treatment begin shortly after the employer learned of your HIV status?
   • Have you been out of work due to illness for any period of time and did the adverse treatment begin upon your return to work?
   • What will your employer’s version of events be? How will you prove that the employer’s version is false?
5. Do you have any difficulty fulfilling the duties of your job because of any HIV-­related health or medical issue? Does your condition prevent full-time work, or require time off for medical appointments, lighter duties or a less stressful position? You might want to try brainstorming to create a reasonable accommodation that you can propose to your employer. Here are some points to consider:
   • How does the company operate and how would the accommodation work in practice?
   • Put yourself in your supervisor’s shoes. What objections might be raised to the requested reasonable accommodation? For example, if you need to leave at a certain time for medical appointments, who would cover your duties?

Housing Discrimination on the Basis of HIV Status

It is illegal under both New Hampshire law (RSA § 354-A:8 et seq.) and the National Fair Housing Amendments of 1989 to discriminate in the sale or rental of housing on the basis of HIV status.  A person cannot be evicted from an apartment because of their HIV or AIDS status, or because they are regarded as having HIV or AIDS.

In addition, a person cannot be discriminated against in housing because of a disability of the buyer or renter, a person intending to reside in the housing, or any person “associated with” the buyer or renter. RSA § 354-A:12.  This means a person cannot be discriminated against because their roommate, lover, friend, relative, or business partner has HIV.
 

Public Accomodations Discrimination / Access to Health Care

What kinds of public places are included?

Federal Law, under the ADA, defines “public accommodation” more broadly as virtually any place of business, and also includes non-business entities such as schools.

New Hampshire law most likely includes a private medical office within the definition of “public accommodation” although no court has formally decided this issue.

Therefore, people with HIV are protected from discrimination in virtually every public place or business, including bars, restaurants, hotels, stores, schools, vocational or other educational programs, taxi cabs, buses, airplanes and other modes of transportation, health clubs, hospitals and medical and dental offices – as long as these facilities are generally open to the public and are not private membership clubs.

Discrimination in Access to Medical Care

Believe it or not, persons with HIV are still faced with discrimination by hospitals, doctors, dentists, and other health care providers.  This discrimination can take the form of an outright refusal to provide medical services or an illegal referral because of a patient’s HIV status.

Both an outright refusal to provide medical treatment and unnecessary referrals on the basis of a person’s disability are unlawful under New Hampshire law and the ADA.

Typical arguments raised by health care providers:

1) “Treating People with HIV is Dangerous.”

Doctors and dentists may claim that a refusal to treat a patient with HIV is  legitimate because they fear they might contract HIV themselves through needlesticks or other exposures to blood.  However, studies of health care workers have concluded that risk of contracting HIV from occupational exposure is minuscule, especially with the use of universal precautions.

For this reason, in 1998, the United States Supreme Court ruled in Bragdon v. Abbott that health care providers cannot refuse to treat people with HIV based on concerns or fears about HIV transmission.

In addition to the legal perspective, both the American Medical Association and the American Dental Association have issued policies that it is unethical to refuse treatment to a person with HIV.

2) Slightly More Subtle:  “I Am Not Qualified to Treat an HIV-Positive Patient.”

A slightly more subtle form of discrimination occurs when doctors or dentists claim that they are not qualified or equipped to treat the patient and refer that patient elsewhere.  In these cases, the merits of a discrimination claim depend upon whether, based on objective medical evidence, the services or treatment needed by the patient require a referral to a specialist or are within the scope of services and competence of the provider.

In United States v. Morvant, for example, a federal district court in Louisiana rejected a dentist’s claim that patients with HIV require a specialist for routine dental care.  The court agreed with the testimony of experts who said that no special training or expertise, other than that possessed by a general dentist, is required to provide dental treatment to people with HIV.  The Court specifically rejected the dentist’s arguments that he was unqualified because he had not kept up with the literature and training necessary to treat patients with HIV.  While this case arose in the context of dental care, it is applicable to other medical settings as well.

• Deny an HIV-positive patient the “full and equal enjoyment” of medical services or to deny an HIV-positive patient the “opportunity to benefit” from medical services in the same manner as other patients.

• Establish “eligibility criteria” for the privilege of receiving medical services which tend to screen out patients who have tested positive for HIV.

• Provide “different or separate” services to patients who are HIV-positive or fail to provide services to patients in the “most integrated setting.”

• Deny equal medical services to a person who is known to have a “relationship” or “association” to a person with HIV, such as a spouse, partner, child, or friend.

• A health care provider cannot decline to treat a person with HIV based on a perceived risk of HIV transmission or because the physician simply does not feel comfortable treating a person with HIV.

• A health care provider cannot agree to treat a patient only in a treatment setting outside the physician’s regular office, such as a special hospital clinic, simply because the person is HIV-positive.

• A health care provider cannot refer an HIV-positive patient to another clinic or specialist, unless the required treatment is outside the scope of the physician’s usual practice or specialty.  The ADA requires that referrals of HIV-positive patients be made on the same basis as referrals of other patients.  It is, however, permissible to refer a patient to specialized care if the patient has HIV-related medical conditions which are outside the realm of competence or scope of services of the provider.

• A health care provider cannot increase the cost of services to an HIV-positive patient in order to use additional precautions beyond the mandated OSHA and CDC infection control procedures.  Under certain circumstances, it may be an ADA violation to even use unnecessary additional precautions which tend to stigmatize a patient simply on the basis of HIV status.

• A health care provider cannot limit the scheduled times for treating HIV-positive patients, such as insisting that an HIV-positive patient come in at the end of the day.

Remedies for Discrimination

New Hampshire Law

To pursue a claim under the New Hampshire Anti-discrimination statute (RSA § 354-A), any person who has been discriminated against in employment, housing or a place of public accommodation must first file a claim with the New Hampshire Commission for Human Rights (NHCHR).   Complaints of discrimination must be filed within 180 days of the last discriminatory act or acts.  There are very few exceptions for lateness, and GLAD encourages people to move promptly in filing claims.  After filing with the NHCHR, a person can proceed with the case there.  The commission has full power to investigate the case, have a trial, and make an award of damages just as a court would.

Federal Law

To pursue a claim under the Americans with Disabilities Act for employment discrimination, a person must file a claim with the Equal Employment Opportunity Commission (EEOC) within 300 days of the date of the discriminatory act.  A person may remove an ADA claim from the EEOC and file a lawsuit in state or federal court.

To pursue a claim under the Americans with Disabilities Act for discrimination in a place of public accommodation, a person may, without first going to an administrative agency, file a claim in state or federal court for injunctive relief only (i.e., seeking a court order that the discriminatory conduct cease).  Money damages are not available for violation of Title III of the ADA unless they are sought by the United States Department of Justice.

To pursue a claim under the National Fair Housing Act for discrimination in housing, a person may file a complaint in court with the United States Office of Housing and Urban Development in Boston.

HIV Testing & Privacy

HIV Testing

Informed Consent Required for Testing

No physician, licensed nurse practitioner, employee of a health care facility, or employee of a blood bank, may administer an HIV test unless the patient has provided HIV-specific consent.  New Hampshire Revised Statutes Annotated (RSA) § 141-F:5.

Prior to taking an HIV test, providers must inform the patient about the “medical interpretations of positive and negative findings” and the provisions of New Hampshire law regarding both the confidentiality of HIV test results and the circumstances under which HIV test results may be disclosed to others without consent (see below). RSA § 141-F:5.  In addition, upon notification of the HIV test results, New Hampshire law mandates “appropriate counseling” of the individual who was tested. RSA § 141-F:7, II.

New Hampshire law does not mandate written consent for an HIV test.  In order to avoid disputes about whether HIV-specific consent has been obtained, providers may want to document a patient’s consent in the record or obtain HIV-specific consent in writing.

Exceptions to the Requirement of Voluntary Informed Consent

1.  Testing of Persons Convicted of Sexual Assault Crimes

All people convicted of a sexual assault crime are tested for HIV.  The test results will be disclosed to the person convicted and to the office of victim/witness assistance.  The office of victim/witness assistance is authorized to disclose the test results to the victim and the county attorney victim/witness advocates, although this is discretionary.  The victim may be notified regardless of whether the victim has  requested notification.  The state must also provide counseling and referrals to the victim and the person convicted, and offer HIV testing for the victim. RSA § 632-A:10-b.

 
2.  Prisoners

Individuals who are convicted and confined to a correctional facility, or people committed to New Hampshire Hospital (the state psychiatric hospital), “may be tested without obtaining written informed consent to the testing, when the results of such tests are necessary for the placement and management of such individuals in the facility,” in accordance with the written policies and procedures of the chief administrator of the facility. RSA § 141-F:5, IV. 

In addition, test results of HIV-positive persons committed to a prison or mental health facility are disclosed to the medical director or chief medical officer of such facility.  The medical director of the facility “shall” provide the facility’s administrator “whatever medical data is necessary to properly assign, treat, or manage the affected individual.”  Similarly, the administrator “may” share this information with other officials who require the information to properly assign, treat, or manage the affected individual. RSA § 141-F:7, IV.

3.  Patient Emergencies

When a patient is incapable of giving informed consent, a physician (or person authorized by a physician) may take an HIV test without informed consent if the test is “immediately necessary to protect the health of the [patient].” RSA § 141-F:5, V.

4. Testing of Donated Blood Products

Any agency receiving purchased or donated blood products “shall” test them for HIV prior to their distribution and use.  RSA § 141-F:5, I - III.

Special Categories Regarding HIV Testing

1.  Testing of Minors

2.  HIV Testing by Insurers

3.  Involuntary Testing of Patients After Occupational Exposure

Privacy

Confidentiality of HIV Test Results

• the individual tested;
• their parent or legal guardian if they are a minor or a mentally incompetent adult; and
• the physician ordering the test, or the person authorized by the physician. RSA § 141-F:7-8.

New Hampshire law provides privacy protections for HIV+ test results in virtually every context.  Under New Hampshire law, “[a]ll records and any other information pertaining to a person’s testing for [HIV] shall be maintained by a health care provider, health or social service agency, organization, business, school or any other entity, public or private, as confidential, and protected from inadvertent or unwarranted intrusion.”  RSA § 141-F:8.

These confidentiality provisions apply to the disclosure of mental health, substance abuse, and other health-related records containing HIV or AIDS status information.

Unlike informed consent to test an individual for HIV, where oral consent is adequate, written consent is required to disclose an individual’s HIV test results, or even that a person was the subject of an HIV test.  Such written authorization must be HIV-specific and must include the reason for the request to disclose the test result. RSA § 141-F:8.

Exceptions to the New Hampshire HIV Privacy Statute 

A physician may disclose HIV test results to another physician or health care provider “directly involved” in the patient’s health care if the disclosure is “necessary in order to protect the health of the person tested.” RSA § 141-F:8, IV.

2.  Blood Donations

The identity of a person who tests positive for HIV may be disclosed to an agency who receives blood donations, provided that the information remains confidential and protected from unwarranted intrusion. RSA § 141-F:8, V.

Remedies for Violation of the Testing and Privacy Statute

Violations of the informed consent, test reporting, or confidentiality provisions described above (RSA § 141-F:5-141-F:8) may also result in criminal liability.  Violations are considered misdemeanors if committed by a person, and felonies if committed by a corporate entity.

The Constitutional Right to Privacy

The constitutional right to privacy can only be asserted when the person disclosing the information is a state or government actor -- e.g., police, prison officials, doctors at a state hospital.

To determine whether there has been a violation of this right to privacy, courts balance the nature of the intrusion into a person’s privacy against the weight to be given the government’s legitimate reasons for a policy or practice which results in disclosure.

State HIV Reporting Laws

New Hampshire regulations require physicians, health care providers, and diagnostic labs to report HIV and AIDS cases to the Department of Public Health within 72 hours.  NH He-P 301.02.  Local boards of health and individuals in charge of institutions where there is no health care provider in attendance  are also required to report cases of communicable diseases to the Department “immediately,” including HIV or AIDS.  NH He-P 301.03.

While reporting of AIDS diagnoses must include the patient’s name, reporting the name of a patient diagnosed with HIV infection is optional and left to the discretion of the person reporting.  According to the regulations, such reporting “may include the patient’s name.”  NH He-P 301.03 (a).  In practice, according to the Department of Public Health, 95% of HIV cases reported are identified by name.  The state does not have plans to move to a unique identifier system for the reporting of HIV-positive test results.

2.  Contact Referral Program

New Hampshire law includes a general provision permitting the Commissioner of Public Health or his or her designee to do “contact referral” to notify persons who may have been infected with HIV.  The law, however, prohibits the Commissioner or his or her designee from disclosing the identity of any HIV-positive individual. RSA § 141-F:9.  The State’s current practice is to offer assistance to HIV-positive individuals in notifying partners.

Warning Third Parties of Harm From Clients 

A counselor or physician may learn that a client is engaging in unsafe sex without having disclosed his or her HIV-positive status to the partner.  Many people have asked whether there is a legal basis to breach client or patient confidentiality under these circumstances.  It is the AIDS Law Project’s view that there is no clear justification for such a breach of confidentiality under New Hampshire law.  Providers and consumers alike, however, should be aware that the case law in this area is still developing and remains unresolved.  For a legal opinion on how to handle a particular situation, a professional should consult with a supervisor or lawyer.
 
2.  Statutory Duty or Right to Breach Confidentiality

New Hampshire has statutes generally addressing a duty by specified health providers to warn of threats of client violence to third parties.  When a client has communicated a serious threat of physical violence against a clearly identified victim or a serious threat of substantial damage to real property, covered professionals  in New Hampshire have a “duty to warn” of, or take reasonable precautions to provide protection from, a client’s violent behavior.  These laws apply to certified mental health professionals  (RSA § 330-A:22), physicians (RSA § 329:31), and nurses (RSA § 326-B:31).

The obligation to warn can be fulfilled through:

• reasonable efforts to communicate the threat to a victim;
• notification of police;
• civil commitment of the client to the state mental health system.  (Note: the client must be in a mental condition “as a result of the mental illness to pose a likelihood of danger to himself or others.”)

A covered professional is not liable for information disclosed to a third party in an effort to discharge the duty described above.

Based on current New Hampshire law, there is not a clear legal justification to breach the confidentiality of a client’s HIV status.  It is important to keep in mind that New Hampshire law does not permit the disclosure of HIV status without written consent.  Therefore, although no court has resolved the issue, the applicability of these duty to warn statutes to HIV is doubtful in light of this broad prohibition on the disclosure of HIV status in New Hampshire.

Other HIV-Related Laws

Access to Clean Needles

Under a New Hampshire law which went into effect on January 1, 2001, a person who is over 18 years of age may legally purchase a hypodermic syringe or needle at a pharmacy without a prescription from a physician.  A pharmacy may sell to any such person up to ten syringes or needles at any single purchase. RSA § 318:52-C.