Discrimination | HIV/AIDS | New Hampshire
Does New Hampshire have laws protecting people with HIV from discrimination?
Yes, New Hampshire has enacted anti-discrimination laws protecting people with HIV from discrimination in employment, housing, and public accommodations. In addition, there are a number of federal laws that protect people from discrimination based on their HIV status.
Who is protected under 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 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 persons with HIV.
What laws protect people with HIV from discrimination in employment?
People with HIV are protected under the New Hampshire Law Against Discrimination (RSA § 354-A), and the federal Americans with Disabilities Act (ADA). Both of these statutes prohibit discrimination in employment on the basis of a person’s disability. New Hampshire law covers workplaces with six or more employees. The ADA covers workplaces with 15 or more employees.
What do these anti-discrimination laws prohibit?
An employer may not take adverse action against an applicant or employee simply on the basis that the person has a disability such as HIV or AIDS. This means that an employer may not terminate, refuse to hire, rehire, or promote, or otherwise discriminate in the terms or conditions of employment, based on the fact that a person is HIV-positive or has AIDS.
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.
What may an employer ask about an employee’s health during the application and interview process?
Under the ADA and New Hampshire law, prior to employment, an employer cannot ask questions that are aimed at determining whether an employee has a disability. Examples of prohibited pre-employment questions are:
- Have you ever been hospitalized or under the care of a physician?
- Have you ever been on workers’ compensation or received disability benefits?
- What medications do you take?
After an offer of employment, can an employer require a medical exam? What guidelines apply?
If an employer has 15 or more employees, they must comply with the ADA. After a conditional offer of employment, the ADA permits an employer to require a physical examination or medical history. The job offer, however, may not be withdrawn unless the results demonstrate that the person cannot perform the essential functions of the job with or without reasonable accommodation. The same medical inquiries must be made of each person in the same job category. In addition, these physical examination and medical history records must be segregated from personnel records, and there are strict confidentiality protections. After employment has begun, the ADA permits an employer to require a physical examination, only if it is job-related and consistent with business necessity.
If an employer has at least six but fewer than 15 employees, only New Hampshire law applies. 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). New Hampshire law, however, does not mandate the specific requirements and limitations that are contained in the ADA regarding a post-offer exam.
How have the courts addressed fears that health care employees who perform invasive procedures, such as surgeons, will transmit HIV to patients?
The risk of HIV transmission from a health care worker to a patient is considered so small that it approaches zero. Nevertheless, in cases where hospitals have sought to restrict or terminate the privileges of HIV-positive health care workers who perform invasive procedures, courts have reacted with tremendous fear and have insisted on an impossible “zero risk” standard. As a result, the small number of courts that have addressed this issue under the ADA have upheld such terminations.
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.
However, in the case of HIV-positive health care workers, courts have ignored the extremely remote probability of the risk and focused on the nature, duration and severity of the risk. The following excerpt from a recent case is typical of courts’ approach:
“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, 50 F.3d 1261 (4th Cir. 1995)).
It is important to note that only a small number of courts have addressed the rights of HIV-positive health care workers. The AIDS Law Project believes that these cases have been incorrectly decided and are inconsistent with the intent of Congress in passing the ADA. Because of the unsettled nature of the law in this area, a health care worker who is confronted with potential employment discrimination should consult a lawyer or public health advocate.
Assessing Discrimination by an Employer
While it may be useful to consult with a lawyer, the following steps can be helpful in beginning to consider and assess a potential employment discrimination problem.
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, a 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?
What laws prohibit discrimination in housing?
It is illegal, under both New Hampshire law (RSA § 354-A:12) 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 his or her HIV or AIDS status, or because he or she is regarded as having HIV or AIDS.
In addition, a person cannot be discriminated against because of his or her “association” with a person with HIV. This means a person cannot be discriminated against because his or her roommate, lover, relative, or business partner has HIV.
Are there any exceptions to these laws?
Yes, exceptions to New Hampshire law exist for single family homes rented by the owner; for residences of 3 or fewer apartments when the owner occupies one apartment; and for residences of five or fewer rooms when the owner or owner’s family live in one room (RSA § 354-A:13). In addition, the Fair Housing Act exempts, in some circumstances, owner-occupied buildings with no more than four units, single-family housing sold or rented without the use of a broker and housing operated by organizations and private clubs that limit occupancy to members.
Do New Hampshire laws protect against discrimination by health care providers, businesses, and other public places?
Yes, under New Hampshire law (RSA § 354-A:1) and the ADA, it is unlawful to exclude a person with HIV from a public place (what the law refers to as a “public accommodation”) or to provide unequal or restricted services to a person with HIV in a public place. Under both statutes, the term “public accommodation” includes any establishment or business that offers services to the public. In addition, the Federal Rehabilitation Act of 1973 (29 U.S.C.A. § 794) prohibits discrimination on the basis of disability in any agency or program that receives federal funding, including hospitals, medical or dental offices, and educational institutions.
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.
Is discrimination by health care professionals against people with HIV still a problem?
Believe it or not, yes, people with HIV still face 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.
What types of arguments do doctors who discriminate against people with HIV make, and are they legitimate?
Doctors typically try to justify discrimination against people with HIV with one of two arguments:
- “Treating People with HIV is Dangerous” (Some doctors refuse to treat people with HIV based on an irrational fear of HIV transmission); and
- “Treating People with HIV Requires Special Expertise” (Some doctors refer patients to other medical providers based on an inaccurate belief that general practitioners are not qualified to provide care to patients with HIV).
Both an outright refusal to provide medical treatment and unnecessary referrals on the basis of a person’s disability are unlawful under the ADA and New Hampshire law.
How have courts and medical experts responded to these arguments?
Courts and medical experts responded to these arguments in the following ways:
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 the case Bragdon v. Abbott that health care providers cannot refuse to treat people with HIV based on concerns or fears about HIV transmission (524 U.S. 624 (1998)).
In addition to the legal perspective, both the American Medical Association and the American Dental Association and many other professional health care organizations have issued policies that it is unethical to refuse treatment to a person with HIV.
2. “Treating People with HIV Requires Special Expertise”
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, a federal trial court rejected a dentist’s claim that patients with HIV require a specialist for routine dental care (898 F. Supp. 1157 (E.D. La 1995)). 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.
What are the specific provisions of the ADA that prohibit discrimination by health care providers?
Under Title III of the ADA (42 U.S.C. §§ 12181-12188), it is illegal for a health care provider to:
- 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.
What specific health care practices constitute illegal discrimination against people with HIV?
Applying the specific provisions of the ADA above to the practice of health care, the following practices are illegal:
- 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 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 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 even be an ADA violation to 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.
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