NEW JERSEY JUDICIARY POLICY ON HIV, ACQUIRED IMMUNE DEFICIENCY SYNDROME (AIDS), AND RELATED PROBLEMS FOR USERS OF THE COURTS AND FOR JUDICIARY EMPLOYEES
Infection with the Human Immunodeficiency Virus (HIV) and its progression to Acquired Immune Deficiency Syndrome (AIDS) will continue to have a significant impact on the New Jersey Judiciary (Judiciary), its employees, programs, and proceedings. In keeping with policies governing other disabilities, the Judiciary's responses to HIV/AIDS embody two objectives: 1) to reinforce the commitment of the Judiciary to serve everyone who uses the courts, including those with disabilities, such as HIV/AIDS; and 2) to continue to provide a safe, healthy, nondiscriminatory environment for its employees and users.
Contrary to national statistics, in New Jersey HIV infects injection drug users, including their sexual partners and children, more than any other identified group. AIDS is the leading cause of premature death in New Jersey and is the leading cause of death for those aged 18 to 44. This is the same age group that predominates among employees and users of the Judiciary. HIV disproportionately infects minorities and women in New Jersey when compared to the national data.
HIV is not transmitted by casual contact. It is usually transmitted by blood-to-blood contact, especially in the sharing of needles by injection drug users, during sexual intercourse, and from mother to child in the womb, during the birth process or through breast feeding. The courthouse is not typically a place where these activities are likely to occur.
Concerns nonetheless exist, and a policy is necessary to provide clear guidance to judges and court personnel. It is also necessary to ensure appropriate and dignified treatment of all users of the courts, including attorneys, jurors, witnesses, litigants, and the general public, as well as all Judiciary employees.
This policy is grounded upon principles developed by the New York, New Jersey Citizens Commission on AIDS and adopted by the National Leadership Coalition on AIDS.
1. People infected with HIV are entitled to the same rights and opportunities as people with other disabilities. It is the Judiciary's responsibility to ensure fair proceedings for all.
2. All policies should be based on the scientific and epidemiological evidence that people infected with HIV do not pose a risk of HIV transmission through casual contact.
3. Judiciary policies must, at a minimum, comply with federal and state laws and regulations.
4. The Judiciary must unequivocally endorse nondiscriminatory policies and educational programs about HIV.
5. The Judiciary must communicate these policies to its employees and users in simple, clear, and unambiguous terms.
6. Judiciary employees should have made available to them sensitive, accurate, and up-to-date information about risk-reduction that may impact on their professional activities and their personal lives. The Judiciary should also make available information about risk reduction and HIV-related services to its users.
7. The medical status of employees and those in contact with the Judiciary should remain confidential unless released pursuant to legal authority.
8. The Judiciary must undertake continuing education about HIV for all Judiciary employees to prevent discrimination and work disruption.
9. HIV screening should not be required as part of pre-employment or general workplace physical examinations.
10. In those special occupational settings where there may be a potential risk of blood exposure to HIV, employees should be provided specific ongoing education and training, as well as the necessary equipment, to reinforce appropriate infection-control procedures and ensure that they are implemented.
B. Applicability and Authority:
This policy applies to the entire Judiciary, its employees, offices, and agencies. This includes the Supreme Court, the Superior Court, the Tax Court and the Municipal Court. It applies to HIV, AIDS and related problems, including tuberculosis. It is not intended to apply to persons for whom the Judiciary is not responsible under law. It is grounded in the following federal and state statutes and standards: Code of Judicial Conduct, Canons 3(A)(4), (5) and 5(A); Code of Conduct for Judiciary Employees, Canon 1(E); Rules of Professional Conduct 8.4(g); Americans with Disabilities Act (42 U.S.C.A. § 12101 et seq.), New Jersey Law Against Discrimination (N.J.S.A. 10:5-1 et seq.), Acquired Immune Deficiency Syndrome Act (N.J.S.A. 26:5C-5 et seq.); Reporting HIV Infection (N.J.A.C. 8:57-2.2); New Jersey Public Employees' Occupational Safety and Health Act (N.J.S.A. 34:6A-25 et seq.) incorporating 29 C.F.R. § 1910.1030 ("Bloodborne Pathogen Standards"); Family and Medical Leave Act of 1993, 29 U.S.C.A.. § 2601, et seq.; and Family Leave Act, N.J.S.A. 34:11B-1 et seq.
HIV: Human immunodeficiency virus (HIV) has been identified as the cause of AIDS.
HIV INFECTION: A chronic progressive multiple organ system infectious disease due to HIV. A person infected with HIV may initially be asymptomatic (free of symptoms) and remain so for up to ten (10) years. Thereafter, chronic HIV infection is evidenced by loss of immune system function reflected by abnormal laboratory findings for T- lymphocyte cells. Persons with HIV infection will progress over time to develop Acquired Immune Deficiency Syndrome (AIDS), which is the most severe progression of symptomatic HIV infection.
AIDS (ACQUIRED IMMUNE DEFICIENCY SYNDROME): AIDS is said to exist when HIV infection meets the criteria established by the United States Centers for Disease Control and Prevention (CDC). These criteria involve significant depression of the immune system and/or the development of certain infections or malignancies. These infections and malignancies are called opportunistic diseases because they do not usually develop or develop as rapidly in people with a normal immune system. A person with AIDS has HIV infection. When used in this policy reference to persons with HIV infection includes individuals in all stages of HIV, from asymptomatic to AIDS.
HIV TRANSMISSION: Transmission of HIV does not occur easily. HIV is not spread through the air, water, food, insect bites or casual contact. Infection can only take place when HIV is introduced into the blood stream of an uninfected individual by one of four bodily fluids (blood, blood containing fluids, semen, or genital secretions) from an infected individual.
HIV in one of these fluids must enter the circulatory system through blood-contaminated instruments, such as syringes and needles, or through mucous membranes or skin openings allowing access to the blood stream. HIV is primarily spread through sexual contact, through needle sharing among injection drug users, or from mother to child during gestation, perinatally or through breast milk. HIV has been transmitted through transfusions of contaminated blood products, and by transplantation of infected organs or tissue, but such transmission is rare today in the United States where blood donors and organ donors are screened for HIV.
TUBERCULOSIS: Tuberculosis (TB) is an infectious disease usually confined to the lung and caused by Mycobacterium tuberculosis. There is a difference between being infected with TB (TB infection) and having TB disease (active TB). Transmission or infection with the bacteria which causes TB occurs when an individual with active TB projects airborne droplets by coughing or sneezing. These airborne droplets are then inhaled into the lung of a susceptible person.
TB INFECTION: Usually TB infection occurs only after close and prolonged contact with a person with active TB. Most of those who become infected with TB do not manifest any symptoms because the body mounts an appropriate immune response to bring the infection under control; however, those infected develop a positive tuberculin skin test.
ACTIVE TB: Only 10% of normal healthy individuals infected with TB ever develop active TB at any point over their lifetime. Typical symptoms of active TB include persistent cough, chest pain, fatigue, weakness, loss of weight and appetite, night sweats, and fever. Only persons with active TB are contagious. Active TB is treated with a medication protocol that will usually allow a return to daily activities with safety. A person infected with HIV and TB, however, has a much greater chance of developing active TB.
A. Policy of Nondiscrimination:
Both the Americans with Disabilities Act (ADA) and the New Jersey Law Against Discrimination (LAD) prohibit employment discrimination based on a physical or mental disability or the perception of such a disability. People living with HIV have a protected disability under both the ADA and the LAD. Workplace policies and procedures addressing employees with HIV must be consistent with those addressing all other employees with disabilities. Both the ADA and the LAD prohibit discrimination in terms and conditions of employment. This includes but is not limited to the hiring, firing, and refusal to promote on the basis of an actual or perceived disability, including infection with HIV.
The Judiciary recognizes that employees with disabilities, such as cancer, heart disease, and HIV, may wish to continue to work. As long as these employees are able to perform the essential elements of the jobs assigned to them with or without reasonable accommodations, they shall be assured of continued employment. Because HIV is not transmitted through casual contact, the ordinary interactions of individuals with HIV pose no direct threat. In those rare situations in which accidents involving bleeding may occur as a result of the performance of workplace duties, the implementation of universal barrier precautions will protect others from the remote potential of HIV transmission.
B. Reasonable Accommodations:
The Judiciary has the obligation to modify its policies, programs and procedures to ensure that otherwise qualified individuals with HIV have an equal and effective opportunity to participate in and benefit from its employment opportunities.
As is the case in the treatment of applicants and employees with all other kinds of disabilities, reasonable accommodations must be made to enable employees infected with HIV to secure and retain employment. Reasonable accommodations are modifications to application procedures and working conditions that enable a disabled employee or job applicant, upon his or her request, to perform the essential elements of a particular job. The Judiciary may require documentation supporting the request.
Examples of reasonable accommodations include the following: making physical changes to the work environment (e.g., the installation of ramps and modification of computer terminal stations to accommodate wheel chair access); providing special equipment; reducing work load; instituting flex time; reassigning job duties; allowing more frequent breaks or rest periods; reducing work hours; granting use of accrued leave and compensatory time for periods of illness. Each request should be evaluated on an individual basis to determine if the accommodation could be reasonably accomplished or if it would impose an undue hardship.
C. Safe Workplace and Universal Precautions:
The Judiciary has an obligation to provide a safe work environment for its employees. The Judiciary recognizes the consensus of the medical community that HIV cannot be transmitted by casual contact. In accordance with Bloodborne Pathogen Standards, and to reduce the risk of potential HIV and hepatitis infections where activities occur that may involve blood-to-blood contact, the following precautions and procedures shall be followed:
1. All Judiciary employees shall be informed of the importance of universal barrier precautions. However, those employees at risk of blood exposure as defined in the Blood Pathogen Standards shall receive specific training in the use of universal precautions.
2. The Judiciary shall establish and periodically review the protocol and equipment necessary to implement universal barrier precautions. Such precautions must be used by all employees in the event of workplace accidents involving bleeding.
(i.) All Judiciary facilities shall be equipped with first-aid kits that will consist of disposable rubber gloves, disposable airway equipment for CPR, and packaged germicidal or alcohol handwipes. They shall also be equipped with disinfectant solutions (1:10 bleach) for use in cleaning up blood and other body fluids. An adequate number of fully stocked first-aid kits shall be maintained at all times and shall be situated throughout all facilities in which the business of the Judiciary is conducted.
(ii.) Disposable rubber gloves shall be worn when there is a likelihood of direct contact exposure to blood or blood contaminated body fluids, or objects soiled by such fluids are handled. Handwashing as soon as possible after such exposure is an important part of universal precautions.
(iii.) While the number and location of the equipment referred to in (i.) above will be determined by each vicinage based upon medical advice, each courtroom, chambers and office shall be advised of the location of the nearest such equipment.
(iv.) Senior managers should oversee the equipment placement and the employee training with respect to Bloodborne Pathogen Standards. "Senior managers" include the AOC Deputy Director and Assistant Directors, Appellate Administrator, Clerks of the Courts, Trial Court Administrators, Tax Court Administrator, and the Directors of the Disciplinary Review Board, Office of Attorney Ethics, and Lawyers' Fund for Client Protection.
3. The needs and procedures to document any accidental exposure to HIV should follow the procedures set forth in the Bloodborne Pathogen Standards.
D. Employee Assistance:
The Judiciary shall provide the following resources to assist employees and managers in dealing with issues related to HIV prevention: management and employee workplace education and printed resources regarding HIV; confidential referral to community HIV-related information and support services for employees and their families; benefits consultation to assist employees in managing health leave and other benefits.
E. Confidentiality and Privacy:
The Judiciary has a legal obligation to protect the confidentiality of employees' medical records, including records related to their HIV status. For guidance see N.J.S.A. 26:5C-7 et seq. Confidential medical information, including information relating to an employee's HIV status, may only be shared after informed, written, specific consent has been obtained from the HIV-infected employee in question. Supervisors, managers, and employees of the Judiciary are to refrain from revealing such confidential medical information without the employee's written consent or upon court order.
F. HIV Testing:
It is the policy of the Judiciary that no employee or applicant for employment will be required to undergo HIV testing as a prerequisite of employment, continuation of employment, or promotion.
Harassment or discriminatory treatment of people with or perceived to be infected with HIV is expressly prohibited by the Judiciary. Managers and supervisors who discover that workplace harassment or discriminatory treatment is occurring have a responsibility to eliminate it. Non-supervisory staff are encouraged to report instances of harassment or discrimination to their designated affirmative action representative.
Employee grievances and questions concerning the ADA, in particular under Title I, should first be addressed to the ADA Coordinators in the respective vicinages and then to:
Title I Coordinator
Administrative Office of the Courts (AOC)
PO Box 966
Trenton, N.J. 08625
Employees are encouraged to utilize this grievance procedure but also have the right to file a complaint with the Equal Employment Opportunity/Affirmative Action office.
III. USERS OF THE COURTS
A. Policy of Nondiscrimination:
The Judiciary shall not refuse to allow individuals, due to their known or perceived HIV infection and related problems, to access on an equal basis, and benefit from, its activities, programs, and proceedings. Actions that may stigmatize or breach the confidentiality of an individual infected with HIV are expressly prohibited unless specifically authorized by law.
These prohibitions apply to all settings, including offices and chambers. Everyone has a fundamental right to fair, unbiased judicial proceedings. In Judiciary facilities, members of the public shall not be restricted from the ordinary rights and privileges related to the use of or participation in the programs and proceedings of the Judiciary.
For emphasis it must be repeated that, unless to provide a reasonable accommodation upon request, all trials and hearings involving a person known or perceived to be infected with HIV should proceed in the same manner with respect to accommodations as any other case, regardless of whether the person is a judge, a party, an attorney, a witness, a juror, a judiciary employee or a member of the public.
B. Reasonable Accommodations and Special Circumstances:
The Judiciary has the obligation to modify its policies, programs, and procedures to ensure that individuals with HIV have an equal and effective access to its programs and proceedings.
It is simply a matter of common sense as well as reasonable accommodation that a person who is acutely ill with any infectious disease, whether HIV, active TB or the "flu," should be temporarily excused from court appearances if at all possible. Those persons with active TB (with or without concurrent HIV infection) whose court appearances cannot be adjourned can be accommodated by providing them with simple masks approved by the public health officials. The Judiciary must always be sensitive to requests for adjournment, acceleration, schedule changes, or other proceedings made by or on behalf of those with HIV.
For example, an individual with HIV and active TB could be accommodated, upon his or her request, by arranging participation in court proceedings by way of speakerphone or other telecommunications devices; or, an individual with respiratory problems associated with HIV could be accommodated by moving proceeding to a more accessible courtroom. Similarly, frequent recesses or alternating days of trial should be scheduled to meet the needs of an attorney or litigant with chronic symptomatic HIV infection. Individuals with HIV who are also suffering from a severe and progressive disability or from a terminal opportunistic disease should be able to advance their cases on the calendar in the same fashion as others with similar prognoses.
Persons known or perceived to be infected with HIV shall be managed not on the basis of their illness but rather on the basis of the direct threat, if any, that their behavior poses to other members of the public. For example, when a litigant with HIV is in court and engages in inappropriate spitting or potentially harmful behavior such as kicking or biting, the litigant should be appropriately restrained. This is so not because HIV makes that person a danger to others, but because spitting, kicking, and biting are inappropriate courthouse behaviors for anyone.
A person with HIV who is coughing should be simply offered a tissue as would anyone else. A person should not be segregated, nor should special equipment such as masks, respirators, or protective clothing be utilized by court personnel - nor required to be used by an individual with HIV - unless expert evidence substantiates the need for such precautions after all less restrictive measures have been considered. Situations requiring differential treatment must be assessed on an individual basis and decisions made based upon medical, expert, and other relevant information.
The Judiciary must be sensitive to the need to maintain confidentiality of records of HIV infection pursuant to N.J.S.A. 26:5C-7 et seq. The results of HIV tests ordered or secured by the Judiciary shall be guarded with a high degree of confidentiality. While there may be circumstances where disclosure is appropriate, the Judiciary should be sensitive and avoid placing unnecessary HIV information in public court files. For example, if an adjournment request were based upon some HIV-related health condition of an attorney, witness or party, consideration should be given to either sealing the medical information or not including it within the public court file. See R.1:38(d) and (e).
Individuals with HIV may at times have special needs requiring reasonable accommodation or may genuinely present a public health challenge. Where special facts or circumstances give rise to medical or public health issues, such cases will be individually evaluated using appropriate factual and scientific evidence. When such issues arise during the processing of a specific case, the judge assigned shall make the necessary determinations. When issues arise in an administrative setting, they shall be brought to the attention of the Assignment Judge for resolution.
In all situations, decisions shall be informed by reference to the Judiciary's obligations and responsibilities under the ADA, in particular under Title II, 42 U.S.C.A. § 12131 et seq., and the implementing regulations found at 28 C.F.R. § 35.101 et seq. ADA grievances and questions about ADA compliance should first be addressed to the ADA coordinators in the respective vicinages, then to:
Title II ADA Coordinator
Chief, Court Access Services
Office of Management and Administrative Services
Administrative Office of the Courts
PO Box 985
Trenton, NJ 08625
(609) 633-6483 - Voice
(609) 292-3618 - TDD
Information about HIV/AIDS is available from the following telephone hotlines: CDC Hotlines:(800)342-2437 (information); (800)344-7432 (en español); (800)243-7889(TTY/TDD); (800)458-5231 (publications); and New Jersey Department of Health (NJDoH) AIDS Hotline: (800)624-2377. Information about TB can be obtained from the National Tuberculosis Center: (800)482-3627.
IV. EDUCATION AND DATA COLLECTION
The Judiciary recognizes that one of the greatest obstacles in dealing with HIV is lack of knowledge. The AOC must continue to coordinate training of all Judiciary personnel (including judges) and to provide educational materials in cooperation with the NJDoH and the New Jersey Department of Personnel. The basic course, entitled HIV Training, must be mandatory for all employees of the Judiciary.
Each facility in which the business of the Judiciary is conducted is encouraged to work with the NJDoH and local organizations serving people with HIV to identify and make readily available informational materials. Such materials should include information about modes of HIV transmission and other issues related to HIV, including available diagnostic, treatment, and counseling services.
The ADA coordinator in each vicinage shall also serve as a coordinator for activities related to furthering the goals of this policy. To that end, the coordinator shall:
A. Maintain a repository of information and training materials provided by the AOC with additional information added locally;
B. Ensure availability of information in Judiciary offices to the public and staff;
C. Receive and process informal grievances under the ADA in accordance with established policy;
D. Be a liaison to the NJDoH and the AOC in HIV-related matters;
E. Help to arrange and provide training; and
F. Review, collect and transmit data on HIV-related matters (including reported or suspected accidents involving bloodborne pathogens) to the AOC as the Director may require.