MA, Know Your Rights: HIV

Lakay » MA, Know Your Rights: HIV

Does Massachusetts have laws protecting people with HIV from discrimination?

Yes. Massachusetts 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.

Ki moun ki pwoteje anba lwa anti-diskriminasyon sa yo?

Moun ki gen SIDA oubyen ki VIH pozitif, menm si yo pa gen okenn sentòm epi yo pa gen okenn siy maladi oubyen siy aparan.
People who have a record of or who are regarded or perceived as having HIV.
Under federal law, but not Massachusetts law, a person who does not have HIV, but who “associates” with a person with HIV– such as a friend, lover, spouse, roommate, business associate, advocate or caregiver.

Ki lwa ki pwoteje moun ki gen VIH kont diskriminasyon nan travay?

People with HIV are protected under Massachusetts General Law Chapter 151B and the federal Americans with Disabilities Act (ADA). Both of these statutes prohibit discrimination in employment on the basis of a person’s disability. Massachusetts law covers workplaces with six or more employees. The ADA covers workplaces with 15 or more employees.

The Rehabilitation Act of 1973 prohibits discrimination on the basis of disability in programs conducted by federal agencies, in programs receiving federal financial assistance, in federal employment, and in the employment practices of federal contractors.

For more information about employment discrimination in Massachusetts, see: Discrimination | Employment | Massachusetts

Kisa lwa anti-diskriminasyon sa yo entèdi?

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, promote, or otherwise discriminate in the terms or conditions of employment, based on an individual’s HIV/AIDS status.

Fòk nou konsantre isit la se si yon moun ki gen SIDA oswa VIH te trete yon fason diferan pase lòt kandida oswa anplwaye ki nan menm sitiyasyon.

Men kèk egzanp diskriminasyon ilegal:

Yon patwon pa ka refize anboche yon moun ki gen VIH paske li pè ke VIH la ka transmèt bay lòt anplwaye oswa bay kliyan.
Yon patwon pa ka refize anboche oswa pran yon desizyon sou anplwa ki baze sou posibilite, oswa menm pwobabilite, pou yon moun vin malad epi li pa pral kapab fè travay la nan lavni.
Yon anplwayè pa ka refize anboche yon moun paske sa ap ogmante prim asirans sante oswa konpansasyon travayè.

Can an employer in Massachusetts ever require an applicant or employee to take an HIV test?

No. Massachusetts law (M.G.L. c. 111, § 70F) prohibits an employer from requiring that an employee take an HIV test under any circumstances at any stage of the application or employment process.

Kisa yon anplwayè ka mande sou sante yon anplwaye pandan pwosesis aplikasyon an ak entèvyou a?

Under the ADA and Massachusetts 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:

Èske ou janm te entène lopital oubyen anba swen yon doktè?
Èske ou janm te resevwa benefis pou aksidan travay oswa andikap?
Have you ever had any medical problems that would make it difficult for you to do your job?
Ki medikaman ou pran?

An employer may, however, ask whether an applicant has the knowledge, skill, and ability to perform the job functions.

Apre yon òf travay, èske yon anplwayè ka egzije yon egzamen medikal? Ki direktiv ki aplike?

Under the ADA, after a conditional offer of employment, an employer may request a medical examination or any medical information, without limitation. However, the ADA does require the employer to follow certain practices:

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.

After employment has begun, an employer may only require a medical exam of a current employee if it is “job-related and consistent with business necessity.” The employer must demonstrate that the medical examination is necessary to measure the employee’s actual performance of job functions.

Of course, as noted above, employers in Massachusetts are prohibited from requesting an HIV test at any time.

In general, Massachusetts law limits employer health inquiries more strictly than federal law. Under Massachusetts law, after a conditional offer of employment, an employer may only require a medical examination for the purpose of determining whether the employee is capable of performing the essential functions of the job with reasonable accommodation.

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

The risk of HIV transmission from a healthcare 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 healthcare 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.

Dispozisyon anplwa ki nan ADA a prevwa ke yon anplwaye pa kalifye pou fè travay la si li poze yon "menas dirèk pou sante oswa sekirite lòt moun". Pou detèmine si yon anplwaye poze yon "menas dirèk", yon tribinal analize:

The nature, duration, and severity of the risk;
Pwobabilite risk la; epi
Whether the risk can be eliminated by reasonable accommodation

In the case of HIV-positive healthcare workers, courts have ignored the extremely remote probability of the risk and instead have focused on the nature, duration, and severity of the risk. The following excerpt from a recent case is typical of the 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. Md) (1995)).

It is important to note that only a small number of courts have addressed the rights of HIV-positive healthcare 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 healthcare worker who is confronted with potential employment discrimination should consult a lawyer or public health advocate.

Evalye Diskriminasyon pa yon Anplwayè

Malgre ke li ka itil pou konsilte ak yon avoka, etap sa yo ka itil pou kòmanse konsidere ak evalye yon pwoblèm diskriminasyon nan travay potansyèl.

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.
Pou w ka pwouve yon plent pou diskriminasyon (sa vle di, ke yo te revoke w, degrade w, elatriye akoz diskriminasyon epi non pa akoz yon rezon lejitim), ou dwe kapab montre bagay sa yo:

Patwon-an te konnen oswa te dekouvri ke ou VIH pozitif oswa ou gen SIDA;
Ou te kalifye pou fè fonksyon esansyèl travay la avèk oswa san aranjman rezonab; epi
Yo te pran aksyon negatif kont ou akòz estati VIH oswa SIDA ou epi rezon pretèks anplwayè a bay pou aksyon negatif la se fo.

Si patwon ou konnen ou gen VIH oswa SIDA, idantifye egzakteman ki moun ki konnen, kijan yo konnen, ak ki lè yo te dekouvri sa. Si ou pa di patwon ou, èske gen nenpòt lòt fason patwon an ta ka konnen oswa sispèk estati VIH ou a?
Konsidere rezon ki fè ou kwè ke yo ap trete w yon fason diferan akòz estati VIH ou a, tankou domèn sa yo:

Èske lòt anplwaye ki nan menm sitiyasyon yo te trete menm jan an oswa yon lòt jan?
Èske patwon ou an te swiv règleman pèsonèl li yo?
Èske tretman negatif la te kòmanse yon ti tan apre anplwayè a te aprann estati VIH ou a?
Èske ou te pèdi travay ou akòz maladi pandan nenpòt peryòd tan epi èske tretman negatif la te kòmanse lè ou te retounen nan travay?
Ki vèsyon patwon ou a pral bay sou evènman yo? Kijan ou pral pwouve ke vèsyon patwon an se fo?

Èske w gen difikilte pou w ranpli devwa travay ou akòz nenpòt pwoblèm sante oswa medikal ki gen rapò ak VIH? Èske kondisyon w lan anpeche w travay aplentan, oswa èske w bezwen pran konje pou randevou medikal, travay ki pi lejè oswa yon pozisyon ki mwens estrèsan? Ou ta ka vle eseye fè brainstorming pou kreye yon aranjman rezonab ke ou ka pwopoze bay anplwayè w la. Men kèk pwen pou w konsidere:

Ki jan konpayi an fonksyone e kijan akomodasyon an ta mache an pratik?
Mete tèt ou nan plas sipèvizè w la. Ki objeksyon yo ta ka soulve kont aranjman rezonab yo mande a? Pa egzanp, si ou bezwen kite nan yon sèten lè pou randevou medikal, ki moun ki ta ranplase devwa w yo?

What Massachusetts laws prohibit discrimination in housing?

It is illegal under both Massachusetts law (M.G.L. c. 151B) and the federal 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 status, or because he or she is regarded as having HIV or AIDS.

In addition, a person cannot be discriminated against in housing because of their “association” with a person with HIV. This means a person cannot be discriminated against because their roommate, lover, friend, relative, or business partner has HIV.

For more information about housing discrimination in Massachusetts, see: Discrimination | Housing | Massachusetts

Èske gen eksepsyon pou lwa sa yo?

Yes. Massachusetts law exempts owner-occupied two-unit housing. In addition, the Fair Housing Act exempts, in some circumstances, ownership-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 Massachusetts laws protect against discrimination by health care providers, businesses, and other public places?

Yes. Under both Massachusetts law (M.G.L. c. 272, § 98) 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.

For more information about public accommodations discrimination in Massachusetts, see: Discrimination | Public Accommodations | Massachusetts

Is discrimination by healthcare professionals against people with HIV still a problem?

Believe it or not, persons with HIV are still faced with discrimination by hospitals, doctors, dentists, and other healthcare 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 are made by doctors who discriminate against people with HIV and are they legitimate?

Doktè yo tipikman eseye jistifye diskriminasyon kont moun ki gen VIH ak youn nan de agiman sa yo:

“Trete Moun ki gen VIH se Danjere” (Gen kèk doktè ki refize trete moun ki gen VIH paske yo pè pou yo pa transmèt VIH); epi
"Tretman Moun ki gen VIH Mande Ekspètiz Espesyal" (Gen kèk doktè ki refere pasyan yo bay lòt founisè swen medikal ki baze sou yon kwayans ki pa kòrèk ke doktè jeneralis yo pa kalifye pou bay swen pasyan ki gen VIH).

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 Massachusetts law.

Ki jan tribinal yo ak ekspè medikal yo te reyaji a agiman sa yo?

Tribinal yo ak ekspè medikal yo te reponn a agiman sa yo nan fason sa yo:

"Trete moun ki gen VIH se danjere"

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 needle sticks or other exposures to blood. However, studies of healthcare workers have concluded that the 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 healthcare 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 healthcare organizations, have issued policies that it is unethical to refuse treatment to a person with HIV.

"Pou trete moun ki gen VIH, sa mande yon ekspètiz espesyal"

Nan ka sa yo, merit yon plent pou diskriminasyon depann de si, ki baze sou prèv medikal objektif, sèvis oswa tretman pasyan an bezwen an mande yon rekòmandasyon bay yon espesyalis oswa si li nan kad sèvis ak konpetans founisè a.

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 healthcare providers?

Under Title III of the ADA (42 U.S.C. §§ 12181-12188), and similar provisions of Massachusetts law, it is illegal for a healthcare provider to:

Deny an HIV-positive patient the “full and equal enjoyment” of medical services or deny an HIV-positive patient the “opportunity to benefit” from medical services in the same manner as other patients.
Etabli "kritè kalifikasyon" pou privilèj pou resevwa sèvis medikal yo, ki gen tandans pou elimine pasyan ki teste pozitif pou VIH.
Bay pasyan ki VIH pozitif oswa ki pa bay pasyan sèvis "diferan oswa separe" nan "anviwònman ki pi entegre a".
Refize sèvis medikal egal a yon moun ke yo konnen ki gen yon "relasyon" oswa "asosyasyon" ak yon moun ki gen VIH, tankou yon mari oswa yon madanm, yon patnè, yon pitit, oswa yon zanmi.

What specific healthcare practices constitute illegal discrimination against people with HIV?

Lè nou aplike dispozisyon espesifik ADA ki anwo yo nan pratik swen sante, pratik sa yo ilegal:

A healthcare 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 healthcare 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 healthcare 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 healthcare 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 healthcare 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.

Ki kèk remèd potansyèl ki genyen pou diskriminasyon anba lalwa federal la?

Pou pouswiv yon plent anba Lwa Ameriken sou Andikap pou diskriminasyon nan travay, patwon-an dwe gen omwen 15 anplwaye. Yon moun dwe depoze yon plent bay Komisyon Egalite Opòtinite nan Travay (EEOC) nan lespas 180 jou apati dat zak diskriminasyon an. Yon moun ka retire yon plent ADA nan men EEOC epi depoze yon pwosè nan tribinal eta a oswa federal.

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. However, a person may recover money damages under the Federal Rehabilitation Act in cases against entities that receive federal funding.

Pou pouswiv yon reklamasyon anba Lwa Reyabilitasyon an, yon moun ka depoze yon plent administratif nan biwo rejyonal Depatman Sante ak Sèvis Sosyal federal la epi/oswa depoze yon pwosè dirèkteman nan tribinal la.

Pou pouswiv yon plent anba Lwa Nasyonal sou Jistis nan Lojman pou diskriminasyon nan lojman, yon moun ka depoze yon plent nan Biwo Lojman ak Devlopman Iben Etazini nan yon ane apre vyolasyon an. Yon moun ka depoze yon pwosè tou nan dezan apre vyolasyon an. Yo ka depoze yon pwosè kit yon moun te depoze yon plent nan HUD kit li pa te depoze yon plent.

Resous

For more information about the MCAD complaint process see:

Pou plis enfòmasyon sou kijan pou depoze yon plent pou diskriminasyon anba ADA a, gade:

File an ADA Complaint

Ka ak Defans

To see HIV/AIDS cases or advocacy in which GLAD has been directly involved with in Massachusetts, go to: Ka ak Defans – GLAD and under “By Issue” click on “HIV/AIDS” and under “By Location” click on “Massachusetts.”

Nouvèl ak Kominike pou laprès

To see news and press releases about HIV/AIDS in Massachusetts, go to: Nouvèl ak Kominike pou laprès – GLAD and under “By Issue” click on “HIV/AIDS” and under “By Location” click on “Massachusetts.”

What laws in Massachusetts govern informed consent for HIV testing?

In 2012, Massachusetts changed the HIV testing part of the law (M.G.L. c. 111, § 70F) to require only “verbal informed consent.” However, a physician, health care provider, or health care facility may not do any of the following without first obtaining a person’s ekri informed consent:

Reveal to third parties that a person took an HIV test; or
Disclose to third parties the results of a person’s HIV test.

It is important to keep in mind that this law only prohibits the disclosure of HIV status by healthcare providers.

A competent adult has the right to decide whether he or she wishes to undergo any medical treatment or testing. Without informed consent, the provision of medical treatment is considered to be a “battery,” a legal claim based upon nonconsensual physical contact with or intrusion upon a person’s body.

What type of consent is considered sufficient?

Consent to an HIV test only needs to be done orally, but disclosure that a person took an HIV test or the results of an HIV test requires written informed consent and must be HIV-specific, not general.

Written informed consent means that a person must sign a specific release authorizing the health care provider to test for HIV and/or disclose the results of an HIV test.

A general release to a healthcare provider authorizing the disclosure of medical records and information is insufficient. The release must specifically authorize the disclosure of HIV test results and must state the purpose for which the information is being requested.

What are the possible penalties for health care providers that do not obtain written informed consent?

A healthcare provider or facility that tests for HIV or discloses an HIV test result without written informed consent violates a Massachusetts law (M.G.L. c. 93A) that protects consumers from unfair and deceptive trade practices. Under this law, a person may receive compensatory damages for harm such as emotional distress, attorneys’ fees, and, under certain circumstances, multiple damages— damages up to three times the amount of a person’s actual damages. A physician may also be liable for medical malpractice or battery.

Can minors give informed consent?

Under Massachusetts law, minors (persons under the age of 18) are generally considered to lack the legal capacity to consent to medical treatment. However, given the importance of making HIV testing available to adolescents, there are two sources of law that authorize a minor to consent to medical treatment or testing, such as an HIV test, without the consent of a parent or legal guardian.

Both lawmakers and the courts have acknowledged the importance of minors being able to make independent decisions about their health care in certain circumstances.

What laws govern minors and informed consent?

Massachusetts law (M.G.L. c. 112, § 12F) provides that a minor may give consent to medical or dental treatment and prevention of HIV under certain circumstances.

Minors may consent to testing and treatment if they are:

Married, widowed, or divorced;
A parent of a child;
A member of the armed forces;
Pregnant or believes themself to be pregnant;
Living separate and apart from their parents or legal guardian and is managing their own financial affairs; or
“Reasonably believes himself to be suffering from or to have come in contact with any disease defined as dangerous to the public health [by the Department of Public Health] pursuant to Chapter 111.” The list of such diseases includes HIV.
Minors may consent to therapies for the prevention of HIV, such as Pre-exposure prophylaxis if they are sexually active.

A physician or dentist is not liable for performing a treatment or procedure, or for prescribing an HIV preventative therapy, without informed consentof the parent or guardian if the physician relied in good faith on the patient’s representation of eligibility for consent under this law.

Medical or dental records and other information about a minor who consents to treatment or prevention of HIV are confidential. They may not be released except with the minor’s consent or judicial order. The statute, however, creates an exception to the confidentiality of a minor’s medical information when the physician or dentist “reasonably believes” that the minor’s condition is “so serious that his life or limb is endangered.” In this case, the physician or dentist must notify the parents or legal guardian of the minor’s condition.

What do the courts say about minors and informed consent?

In addition to the provisions of Chapter 112, Section 12F, courts have held that minors can provide informed consent for medical treatment if they are sufficiently intelligent and mature to understand the risks and benefits of treatment, regardless of financial independence or living situation. This is known as the “mature minor” rule.

Courts will typically assess the minor’s age, experience, education, training, judgment, conduct, and demeanor to assess whether, under a particular circumstance, the minor can appreciate the nature and consequences of treatment.

Courts will give particular weight to how close the person is to majority (18 years of age), the benefits of the treatment or test (which are significant in the case of an HIV antibody test), and the complexity of the treatment or test.

Can people under 18 access PrEP for HIV prevention without informing their parents?

Yes. If you are under 18 and sexually active, Massachusetts law enables you to access HIV-preventative medication (PrEP) from a healthcare provider or health clinic without needing the consent of a parent or legal guardian. State law ensures the privacy of young people to receive PrEP, or any other HIV prevention therapy, and medical providers can’t share that with anyone, including your parents, without your written consent. For more information, visit PrEP for Minors.

Does Massachusetts have reporting laws that require HIV or AIDS diagnoses to be reported to the Department of Public Health?

Yes. All states require that certain health conditions be reported to public health authorities in order to track epidemiological trends and develop effective prevention strategies. Massachusetts requires that licensed healthcare providers and healthcare facilities licensed by the Department of Public Health report HIV and AIDS cases by name to the Massachusetts HIV/AIDS Surveillance Program. AIDS cases have been reportable by name since 1983. In 1999 HIV cases became reportable using a unique identifier code. Due to funding conditions by the federal government, however, Massachusetts was forced to require HIV reporting by name beginning January 1, 2007.

The Department of Public Health has strong security measures in place to prevent the dissemination of HIV/AIDS reporting data. In addition, state regulations prohibit names from being shared with anyone else, including state or federal government entities (for more information, see HIV Reporting in Massachusetts for Consumers available at Mass.gov, in the Diseases & Conditions section under Physical Health and Treatment).

What laws in Massachusetts protect the privacy of medical information, such as HIV?

As noted above, the HIV testing statute prohibits a healthcare provider from disclosing to a third party the results of an HIV test without written informed consent. A more general Massachusetts privacy law applies in other contexts.

Massachusetts law (M.G.L. c. 214, § 1B) provides:

A person shall have a right against unreasonable, substantial, or serious interference with his privacy.

How do courts determine whether there has been a violation of this general privacy law?

As an initial matter, in order to be protected by this law, a person must have a “privacy right” in particular information. Courts have ruled that a person has a privacy right in HIV infection status because:

HIV is personal medical information; and
HIV is associated with significant social stigma and

Simply having a “privacy right” in certain personal information, however, does not mean that every disclosure is a violation of the law.

In analyzing whether there has been a violation of the statute, courts will determine whether there is any legitimate countervailing reason for the disclosure. In other words, a court will balance privacy rights versus other reasons that a defendant articulates as to why the disclosure was necessary in spite of the infringement upon privacy.

For example, if an employee reveals his or her HIV status to a supervisor, the supervisor may only reveal that information to others for a necessary business reason. It may be considered a legitimate business reason to discuss the employee’s HIV status with other management personnel in connection with making adjustments to a person’s job duties as a reasonable accommodation. It would not, however, be a legitimate business reason to tell the employee’s co-workers or non-essential management personnel.

If a daycare center or school revealed the identity of a child or student with AIDS to parents or other students, there is a good argument that such conduct violates Massachusetts law. There is no legitimate interest in disclosing the child’s HIV status, especially since the risk of transmission to others is minuscule.

Does a person with HIV have a constitutional right to privacy?

Many courts have found that a person has a constitutional privacy right to the nondisclosure of HIV status. Courts have based this right on the Due Process Clause of the U.S. Constitution which creates a “privacy interest” in avoiding disclosure of certain types of personal, intimate information.

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, or doctors at a state hospital.

Similar to the Massachusetts privacy statute (M.G.L. c. 214, § 1B), courts balance the nature of the intrusion into a person’s privacy against the weight to be given to the government’s legitimate reason for a policy or practice that results in disclosure.

Do healthcare professionals ever have an obligation to warn a third party about a client’s HIV status?

It is the AIDS Law Project’s view that there is no clear justification for such a breach of confidentiality under Massachusetts law, even if a counselor or physician learns that a client is engaging in unsafe sex or other risky behavior without having disclosed his or her HIV-positive status to a partner. 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 specific situation, consult with a supervisor or lawyer.

Do provisions under Massachusetts law that permit health care providers, under certain limited circumstances, to warn third parties of potential harm apply to HIV status?

It is the AIDS Law Project’s position that these provisions should not be understood to apply to HIV.

Take, for example, the Massachusetts statute that permits licensed social workers and licensed mental health professionals to warn third-parties under certain limited circumstances (M.G.L. c. 112, § 135A). Under certain circumstances, Massachusetts law provides that a social worker may, but is not legally mandated to, disclose confidential communications, including situations when:

The client has communicated an explicit threat to kill or inflict serious bodily injury upon a reasonably identified victim or victims with the apparent intent and ability to carry out the threat;
The client has a history of physical violence that is known to the social worker and the social worker has a reasonable basis to believe a client will kill or inflict serious bodily injury on a reasonably identifiable victim.

There are virtually identical statutes for licensed psychologists (M.G.L. c. 112, § 129A) and licensed mental health professionals (M.G.L. c. 123, § 36B).

And, with respect to physicians, the Massachusetts Supreme Judicial Court stated in Alberts v. Devine in 1985, that physicians owe patients a legal duty not to disclose confidential patient medical information without the patient’s consent, “except to meet a serious danger to the patient or others.” The Court did not, and has not since then, articulated the meaning and scope of the words “serious danger.”

Neither of these provisions provides clear legal justification to breach the confidentiality of a client’s HIV status, in light of the specific Massachusetts statute prohibiting the involuntary disclosure of HIV status by a healthcare provider.

No court has ever interpreted the relationship between the HIV confidentiality statute and other general provisions permitting disclosure of patient information under limited circumstances by doctors or mental health providers. Therefore, providers who involuntarily disclose a client’s HIV status risk liability for invasion of privacy.

However, because this is an evolving area of law, it is crucial to consult an attorney with questions about specific situations.

HIV/STI Testing and Counseling Resources

Planifikasyon Paran yo – HIV/STI Testing and sexual healthcare
Sante Fenway – specializing in healthcare for LGBTQ communities and people living with HIV/AIDS
SAK – Alyans Jèn LGBTQ Boston an
Boston GLASS – a variety of services for LGBTQ Youth, including HIV testing

Kisa sa vle di lè yon anplwayè ka oblije bay yon "akomodasyon rezonab" pou yon anplwaye ki andikape?

People 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 “reasonable accommodation.”

Men kèk egzanp aranjman rezonab:

Modifye oswa chanje tach oswa responsablite travay;
Etabli yon orè travay a tan pasyèl oswa modifye;
Pèmèt konje pandan lè travay regilye yo pou randevou medikal;
Reasignasyon yon anplwaye nan yon travay ki vid; oubyen
Fè modifikasyon nan plan fizik yon sit travay oubyen achte aparèy tankou yon anplifikatè telefòn pou pèmèt, pa egzanp, yon moun ki gen pwoblèm tande fè travay la.

How can a person obtain 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 GLAD Answers at Repons GLAD in order to strategize about ways to respond to 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.

Èske yon anplwayè oblije aksepte yon demann pou yon aranjman rezonab?

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.

Kilè yon "akomodasyon rezonab" pou yon anplwaye se yon "chay ki pa nesesè" pou yon anplwayè?

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

Gwosè, bidjè ak kontrent finansye patwon-an;
Pri pou aplike aranjman yo mande a; epi
Kijan akomodasyon an afekte oswa deranje biznis patwon-an.

Ankò, yo egzamine chak sitiyasyon ka pa ka.

Am I able to purchase syringes at a pharmacy without a prescription?

Yes. In 2006, Massachusetts passed a law allowing pharmacies to sell syringes over the counter to anyone who is 18 years of age or older and decriminalizing possession of needles (M. G. L. c. 94c §§27-27A).

Does Massachusetts have needle exchange programs?

Yes. Massachusetts law permits the Department of Public Health to establish needle exchange programs, but unfortunately requires “local approval” for the siting of a program (M. G. L. c.111 §215). To date, only Boston, Cambridge, Northampton, and Provincetown have needle exchange programs.

Does Massachusetts have a law that requires health insurance plans to cover lipodystrophy surgery?

Yes, on August 10, 2016, Massachusetts Governor Charlie Baker signed into law An Act Relative to HIV-Associated Lipodystrophy Syndrome Treatment. This first-of-its-kind legislation requires public and private insurers to cover treatment of a debilitating side effect of early HIV medications. This historic victory means that some of the longest-term survivors of the HIV epidemic will finally have access to the critical health care they need and deserve.

Pou plis enfòmasyon, gade: Governor Baker Signs Historic Law Requiring Treatment for HIV-Associated Lipodystrophy – GLAD.

Are insurance companies required to provide long-term care or life insurance to people who are taking PrEP?

As a general matter, no. However, in a GLAD case, Doe v Mutual of Omaha Insurance Company, Mutual of Omaha agreed to revise its underwriting guidelines to no longer decline long-term care insurance applicants solely on the basis that an applicant takes PrEP for HIV prevention.

Pou plis enfòmasyon, gade: Doe v. Mutual of Omaha Insurance Company – GLAD.

Resous

For support and more information, contact AIDS Action.

For information about Post-Exposure Prophylaxis (PEP), see: Post-Exposure Prophylaxis (nPEP) | Mass.gov.

For information about Pre-Exposure Prophylaxis, see: HIV Pre-Exposure Prophylaxis (PrEP) information for the public | Mass.gov

If you are unable to work and are on SSDI or private disability insurance, it is important to work closely with your medical providers to make sure that the medical documentation supports your continuing need for disability insurance.

MA private health plans and MassHealth must provide coverage for the treatment of lipodystrophy. You can learn more at www.GLAD.org/TLC

There are laws in other states requiring disclosure or criminalizing the transmission of HIV. These laws were passed decades ago based on stigma and ignorance about the virus. Fortunately, there are no specific statutes in Massachusetts criminalizing the transmission of HIV.

GLAD Answers can help you:

Understand how to file a complaint if you are discriminated against in your job, a public accommodation, housing, obtaining credit, or at school.
Understand what it means to ask for a “reasonable accommodation” in your job.
Understand your rights when it comes to being tested for HIV and having those test results kept private.

For more information about your rights and protections, and for referrals, you can contact Repons GLAD, GLAD’s free & confidential legal information line. Your LGBTQ and HIV legal rights resource!

Repons GLAD | GLAD

M–F 1:30–4:30 p.m. EST

August 2022