§ 130A-148. Laboratory tests for AIDS virus infection.
§130A‑148. Laboratory tests for AIDS virus infection.
(a) For the protectionof the public health, the Commission shall adopt rules establishing standardsfor the certification of laboratories to perform tests for Acquired ImmuneDeficiency Syndrome (AIDS) virus infection. The rules shall address, but notbe limited to, proficiency testing, record maintenance, adequate staffing andconfirmatory testing. Tests for AIDS virus infection shall be performed onlyby laboratories certified pursuant to this subsection and only on specimenssubmitted by a physician licensed to practice medicine. This subsection shallnot apply to testing performed solely for research purposes under the approvalof an institutional review board.
(b) Prior to obtainingconsent for donation of blood, semen, tissue or organs, a facility orinstitution seeking to obtain blood, tissue, semen or organs for transfusion,implantation, transplantation or administration shall provide the potentialdonor with information about AIDS virus transmission, and information about whoshould not donate.
(c) No blood or semenmay be transfused or administered when blood from the donor has not been testedor has tested positive for AIDS virus infection by a standard laboratory test.
(d) No tissue or organsmay be transplanted or implanted when blood from the donor has not been testedor has tested positive for AIDS virus infection by a standard laboratory testunless consent is obtained from the recipient, or from the recipient's guardianor a responsible adult relative of the recipient if the recipient is notcompetent to give such consent.
(e) Any facility orinstitution that obtains or transfuses, implants, transplants, or administersblood, tissue, semen, or organs shall be immune from civil or criminalliability that otherwise might be incurred or imposed for transmission of AIDSvirus infection if the provisions specified in subsections (b), (c), and (d) ofthis section have been complied with.
(f) Specimens may betested for AIDS virus infection for research or epidemiologic purposes withoutconsent of the person from whom the specimen is obtained if all personalidentifying information is removed from the specimen prior to testing.
(g) Persons tested forAIDS virus infection shall be notified of test results and counseledappropriately. This subsection shall not apply to tests performed by or forentities governed by Article 39 of Chapter 58 of the General Statutes, theInsurance Information and Privacy Protection Act, provided that said entities complywith the notice requirements thereof.
(h) The Commission mayauthorize or require laboratory tests for AIDS virus infection when necessaryto protect the public health.
A test for AIDS virusinfection may also be performed upon any person solely by order of a physicianlicensed to practice medicine in North Carolina who is rendering medicalservices to that person when, in the reasonable medical judgment of thephysician, the test is necessary for the appropriate treatment of the person;however, the person shall be informed that a test for AIDS virus infection isto be conducted, and shall be given clear opportunity to refuse to submit tothe test prior to it being conducted, and further if informed consent is notobtained, the test may not be performed. A physician may order a test for AIDSvirus infection without the informed consent of the person tested if the personis incapable of providing or incompetent to provide such consent, othersauthorized to give consent for the person are not available, and testing isnecessary for appropriate diagnosis or care of the person.
An unemancipated minor may betested for AIDS virus infection without the consent of the parent or legalguardian of the minor when the parent or guardian has refused to consent to suchtesting and there is reasonable suspicion that the minor has AIDS virus or HIVinfection or that the child has been sexually abused.
(i) Except as providedin this section, no test for AIDS virus infection shall be required, performedor used to determine suitability for continued employment, housing or publicservices, or for the use of places of public accommodation as defined in G.S.168A‑3(8), or public transportation.
Further it shall be unlawfulto discriminate against any person having AIDS virus or HIV infection onaccount of that infection in determining suitability for continued employment,housing, or public services, or for the use of places of public accommodation,as defined in G.S. 168A‑3(8), or public transportation.
Any person aggrieved by an actor discriminatory practice prohibited by this subsection relating to housingshall be entitled to institute a civil action pursuant to G.S. 41A‑7 ofthe State Fair Housing Act. Any person aggrieved by an act or discriminatorypractice prohibited by this subsection other than one relating to housing maybring a civil action to enforce rights granted or protected by this subsection.
The action shall be commencedin superior court in the county where the alleged discriminatory practice orprohibited conduct occurred or where the plaintiff or defendant resides. Suchaction shall be tried to the court without a jury. Any relief granted by thecourt shall be limited to declaratory and injunctive relief, including ordersto hire or reinstate an aggrieved person or admit such person to a labororganization.
In a civil action brought toenforce provisions of this subsection relating to employment, the court mayaward back pay. Any such back pay liability shall not accrue from a date morethan two years prior to the filing of an action under this subsection. Interimearnings or amounts earnable with reasonable diligence by the aggrieved personshall operate to reduce the back pay otherwise allowable. In any civil actionbrought under this subsection, the court, in its discretion, may awardreasonable attorney's fees to the substantially prevailing party as a part ofcosts.
A civil action broughtpursuant to this subsection shall be commenced within 180 days after the dateon which the aggrieved person became aware or, with reasonable diligence,should have become aware of the alleged discriminatory practice or prohibitedconduct.
Nothing in this section shallbe construed so as to prohibit an employer from:
(1) Requiring a test forAIDS virus infection for job applicants in preemployment medical examinationsrequired by the employer;
(2) Denying employmentto a job applicant based solely on a confirmed positive test for AIDS virusinfection;
(3) Including a test forAIDS virus infection performed in the course of an annual medical examinationroutinely required of all employees by the employer; or
(4) Taking theappropriate employment action, including reassignment or termination ofemployment, if the continuation by the employee who has AIDS virus or HIV infectionof his work tasks would pose a significant risk to the health of the employee,coworkers, or the public, or if the employee is unable to perform the normallyassigned duties of the job.
(j) It shall not beunlawful for a licensed health care provider or facility to:
(1) Treat a person whohas AIDS virus or HIV infection differently from persons who do not have thatinfection when such treatment is appropriate to protect the health careprovider or employees of the provider or employees of the facility whileproviding appropriate care for the person who has the AIDS virus or HIVinfection; or
(2) Refer a person whohas AIDS virus or HIV infection to another licensed health care provider orfacility when such referral is for the purpose of providing more appropriatetreatment for the person with AIDS virus or HIV infection. (1987,c. 782, s. 16; 1989, c. 698, s. 1; 1991, c. 720, s. 78.)