(葡萄牙语) (克里奥尔阿伊申) (普通话)

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.

Who is protected under these anti-discrimination laws?

  • 患有艾滋病或艾滋病毒阳性的人，即使他们无症状且没有外在或明显的疾病迹象。
  • 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.

哪些法律保护艾滋病毒感染者免受就业歧视？

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

这些反歧视法禁止什么？

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.

这里的重点是艾滋病患者或艾滋病毒感染者是否与类似情况下的其他申请人或员工受到不同的待遇。

以下是非法歧视的例子：

  • 雇主不得因担心艾滋病毒感染者会传染给其他员工或顾客而拒绝雇用该感染者。
  • 雇主不得基于某人将来可能生病而无法胜任工作的可能性或概率而拒绝雇用或做出雇用决定。
  • 雇主不能因为这会增加健康或工人赔偿保险费而拒绝雇用某人。

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.

在申请和面试过程中，雇主可能会询问员工的哪些健康状况？

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:

  • 您曾经住院或接受过医生的护理吗？
  • 您是否曾经领取过工伤赔偿或残疾福利？
  • Have you ever had any medical problems that would make it difficult for you to do your job?
  • 你吃什么药？

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

雇主发出录用通知后，可以要求求职者进行体检吗？有哪些适用的准则？

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.

《美国残疾人法案》中的就业条款规定，如果员工“对他人的健康或安全构成直接威胁”，则其不具备从事该工作的资格。为了确定员工是否构成“直接威胁”，法院会分析以下因素：

  • The nature, duration, and severity of the risk;
  • 风险的概率；以及
  • 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.

评估雇主的歧视

虽然咨询律师可能会有所帮助，但以下步骤可以帮助您开始考虑和评估潜在的就业歧视问题。

  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. 为了证明歧视索赔（即，您因歧视而不是某些正当理由而被解雇、降职等），您必须能够证明以下内容：
  • 雇主知道或得知您是艾滋病毒阳性或患有艾滋病；
  • 无论是否有合理的便利条件，您都具备履行该工作基本职责的资格；并且
  • 由于您的 HIV 或艾滋病状况而对您采取了不利措施，并且雇主给出的不利措施借口是虚假的。
  1. 如果您的雇主知道您感染了艾滋病毒或艾滋病，请明确说明谁知道、他们是如何知道的以及他们何时发现的。如果您没有告诉雇主，雇主还有其他途径知道或怀疑您的艾滋病毒状况吗？
  2. 考虑一下您认为自己因艾滋病毒感染状况而受到区别对待的原因，包括以下方面：
  • 处于类似情况的其他员工是否受到了不同的待遇或相同的待遇？
  • 您的雇主是否遵守了其人事政策？
  • 雇主得知您的艾滋病毒状况后不久就开始对您进行不利的待遇了吗？
  • 您是否曾因病缺勤过一段时间，并且返回工作岗位后是否开始受到不良治疗？
  • 你的雇主对此事的描述是怎样的？你该如何证明雇主的说法是错误的？
  1. 您是否因任何与艾滋病毒相关的健康或医疗问题而难以履行工作职责？您的病情是否妨碍您全职工作，或者需要请假去看医生、做些轻松的工作或找个压力较小的工作？您可以尝试集思广益，想出一个合理的安排，并向雇主提出。以下是一些您可以考虑的要点：
  • 该公司如何运作？实际的住宿安排如何？
  • 站在主管的角度想想，对于你提出的合理安排，主管可能会提出哪些异议？例如，如果你需要在某个时间离开去看医生，谁来接替你的工作？

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.

此外，一个人不能因为与艾滋病毒感染者“有联系”而在住房方面受到歧视。这意味着一个人不能因为其室友、爱人、朋友、亲戚或商业伙伴感染艾滋病毒而受到歧视。

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

这些法律有例外吗？

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?

医生通常试图用以下两个论点之一来证明对艾滋病毒感染者的歧视是合理的：

  • “治疗艾滋病毒感染者是危险的”（一些医生出于对艾滋病毒传播的非理性恐惧而拒绝治疗艾滋病毒感染者）；
  • “治疗艾滋病毒感染者需要特殊的专业知识”（一些医生错误地认为全科医生没有资格为艾滋病毒感染者提供护理，因此将患者转诊给其他医疗服务提供者）。

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.

法院和医学专家对这些论点作何反应？

法院和医学专家对这些论点作出了如下回应：

  1. “治疗艾滋病毒感染者是危险的”

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.

  1. “治疗艾滋病毒感染者需要特殊的专业知识”

在这些情况下，歧视索赔的是非曲直取决于基于客观医学证据，患者所需的服务或治疗是否需要转诊给专科医生，或者是否属于服务提供者的服务和能力范围。

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.
  • 建立接受医疗服务的“资格标准”，往往会筛选出艾滋病毒检测呈阳性的患者。
  • 为艾滋病病毒阳性患者提供“不同或单独”的服务，或未能在“最综合的环境中”为患者提供服务。
  • 拒绝向已知与艾滋病毒感染者有“关系”或“交往”的人（如配偶、伴侣、子女或朋友）提供平等的医疗服务。

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

将上述 ADA 的具体规定应用于医疗保健实践，以下做法是违法的：

  • 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.

根据联邦法律，针对歧视有哪些潜在的补救措施？

要根据《美国残疾人法案》提起就业歧视索赔，雇主必须至少拥有 15 名员工。申请人必须在歧视行为发生之日起 180 天内向平等就业机会委员会 (EEOC) 提出索赔。申请人可以从 EEOC 撤销 ADA 索赔，并向州法院或联邦法院提起诉讼。

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.

为了根据《康复法》提出索赔，个人可以向联邦卫生与公众服务部地区办事处提出行政投诉和/或直接向法院提起诉讼。

根据《国家公平住房法》，如需就住房歧视提起索赔，个人可在违规行为发生后一年内向美国住房和城市发展部 (HUD) 提出投诉。个人也可在违规行为发生后两年内提起诉讼。无论个人是否已向 HUD 提出投诉，均可提起诉讼。

资源

For more information about the MCAD complaint process see:

有关根据 ADA 提起歧视投诉的信息，请参阅：

案件与辩护

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

新闻与新闻稿

To see news and press releases about HIV/AIDS in Massachusetts, go to: 新闻与新闻稿 – GLAD and under “By Issue” click on “HIV/AIDS” and under “By Location” click on “Massachusetts.”

马萨诸塞州有哪些法律管辖 HIV 检测的知情同意？

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 书面 知情同意：

  • 向第三方透露某人已接受艾滋病毒检测；或者
  • 向第三方披露某人的艾滋病毒检测结果。

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.

什么类型的同意才算充分？

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.

书面知情同意意味着一个人必须签署一份特定的授权书，授权医疗保健提供者进行艾滋病毒检测和/或披露艾滋病毒检测结果。

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.

对于未获得书面知情同意的医疗保健提供者可能受到哪些处罚？

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.

未成年人可以给予知情同意吗？

根据马萨诸塞州法律，未成年人（未满18岁）通常被认为缺乏同意接受医疗治疗的法律行为能力。然而，鉴于向青少年提供HIV检测的重要性，目前有两部法律授权未成年人无需父母或法定监护人同意即可同意接受医疗治疗或检测，例如HIV检测。

立法者和法院都承认未成年人在某些情况下能够独立决定自己的医疗保健的重要性。

哪些法律管辖未成年人和知情同意？

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:

  1. Married, widowed, or divorced;
  2. 孩子的父母；
  3. 武装部队成员；
  4. Pregnant or believes themself to be pregnant;
  5. Living separate and apart from their parents or legal guardian and is managing their own financial affairs; or
  6. “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.
  7. 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.

法院对未成年人和知情同意有何看法？

除第112章第12F条的规定外，法院还裁定，如果未成年人具备足够的智力和成熟度，能够理解治疗的风险和益处，无论其经济独立性或生活状况如何，他们都可以就医疗治疗提供知情同意。这被称为“成熟未成年人”规则。

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.

法院将特别考虑该人距离成年年龄（18 岁）的接近程度、治疗或测试的益处（对于 HIV 抗体测试而言，益处至关重要）以及治疗或测试的复杂性。

18 岁以下的人可以在不告知父母的情况下接受 PrEP 来预防艾滋病毒吗？

是的。如果您未满18岁且有性生活，马萨诸塞州法律允许您从医疗保健提供者或健康诊所获取HIV预防药物（PrEP），而无需父母或法定监护人的同意。州法律确保年轻人在接受PrEP或任何其他HIV预防治疗时的隐私，未经您的书面同意，医疗服务提供者不得与任何人（包括您的父母）分享这些信息。更多信息，请访问 未成年人暴露前预防 (PrEP).

马萨诸塞州是否有报告法律要求向公共卫生部报告 HIV 或艾滋病诊断结果？

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，位于“身体健康和治疗”下的“疾病和状况”部分）。

马萨诸塞州的哪些法律保护医疗信息（例如 HIV）的隐私？

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.

法院如何确定是否存在违反这项一般隐私法的行为？

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 是个人医疗信息；并且
  • HIV 与严重的社会耻辱有关，

然而，仅仅对某些个人信息拥有“隐私权”并不意味着每次披露都是违法的。

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.

艾滋病毒感染者是否享有宪法赋予的隐私权？

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.

马萨诸塞州法律允许医疗保健提供者在某些有限的情况下警告第三方可能造成的伤害，这是否适用于 HIV 状况？

艾滋病法律项目的立场是，这些规定不应被理解为适用于艾滋病毒。

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;
  • 社会工作者知道客户有身体暴力史，并且社会工作者有合理理由相信客户会杀死可合理识别的受害者或对其造成严重的身体伤害。

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.

然而，由于这是一个不断发展的法律领域，因此就具体情况咨询律师至关重要。

 

HIV/STI 检测和咨询资源

  • 计划生育 – HIV/STI 检测和性保健
  • 芬威健康 – 专门为 LGBTQ 群体和 HIV/AIDS 患者提供医疗保健
  • 巴格利 – 波士顿 LGBTQ 青年联盟
  • 波士顿玻璃 – 为 LGBTQ 青年提供各种服务，包括 HIV 检测

 

雇主必须为残疾雇员提供“合理便利”是什么意思？

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.”

合理便利的例子包括：

  • 修改或改变工作任务或职责；
  • 制定兼职或修改的工作时间表；
  • 允许在正常工作时间内请假去看医生；
  • 将员工重新分配到空缺职位；或
  • 对工作现场的物理布局进行修改或购置电话放大器等设备，以允许听力障碍人士完成工作。

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 GLAD 答案 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.

雇主是否必须批准合理住宿请求？

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.

什么情况下，对员工而言“合理的便利”会成为对雇主而言“过度负担”？

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

  • 雇主的规模、预算和财务限制；
  • 实施所要求的住宿的费用；以及
  • 该调整如何影响或扰乱雇主的业务。

再次强调，我们会根据具体情况进行审查。

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.

有关详细信息，请参阅：For more information, see: 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.

有关详细信息，请参阅：For more information, see: Doe v. Mutual of Omaha Insurance Company – GLAD.

资源

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

   

其他州也有法律要求披露艾滋病毒信息或将传播艾滋病毒定为犯罪。这些法律是几十年前基于对艾滋病毒的污名化和无知而通过的。幸运的是，马萨诸塞州没有专门的法规将传播艾滋病毒定为犯罪。

GLAD Answers can help you:

  • 了解如果您在工作、公共场所、住房、获得信贷或在学校受到歧视时如何提出投诉。
  • 了解在工作中要求“合理便利”的含义。
  • 了解接受艾滋病毒检测以及对检测结果保密时的权利。

 

  

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

GLAD 答案 | GLAD
M–F 1:30–4:30 p.m. EST

August 2022