(葡萄牙語) (克里奧爾阿伊申) (國語)

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?

  • 患有愛滋病或愛滋病毒陽性的人，即使他們無症狀且沒有外在或明顯的疾病跡象。
  • 有愛滋病毒感染記錄或被認為或認為感染愛滋病毒的人。
  • 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.

哪些法律保護愛滋病毒感染者免受就業歧視？

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.

1973 年《康復法案》禁止在聯邦機構實施的計畫、接受聯邦財政援助的計畫、聯邦就業以及聯邦承包商的僱用實踐中基於殘疾進行歧視。

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

這些反歧視法禁止什麼？

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.

這裡的重點是愛滋病患者或愛滋病毒感染者是否與其他類似情況下的申請人或員工受到不同的待遇。

以下是非法歧視的例子：

  • 雇主不得因擔心愛滋病毒感染者會傳染給其他員工或顧客而拒絕僱用該感染者。
  • 雇主不得基於某人將來可能生病而無法勝任工作的可能性或機率而拒絕僱用或做出僱用決定。
  • 雇主不能因為這會增加健康或工人賠償保險費而拒絕僱用某人。

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.

What may an employer ask about an employee’s health during the application and interview process?

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:

  • 您曾經住院或接受過醫師的照護嗎？
  • 您是否曾經領取過工傷賠償或殘障福利？
  • Have you ever had any medical problems that would make it difficult for you to do your job?
  • 你吃什麼藥？

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

After an offer of employment, can an employer require a medical exam? What guidelines apply?

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.

法院如何處理人們對執行侵入性手術的醫療保健人員（如外科醫生）會將愛滋病毒傳播給病人的擔憂？

HIV 從醫護人員傳播給病人的風險被認為非常小，接近零。然而，在醫院試圖限製或終止執行侵入性操作的 HIV 陽性醫護人員的權利的案件中，法院的反應卻異常恐懼，並堅持一個不可能實現的「零風險」標準。因此，少數根據《美國殘疾人法案》（ADA）處理過此類問題的法院都支持了此類終止決定。

The employment provisions in the ADA provide that an employee is not qualified to perform the job if he or she poses a “direct threat to the health or safety of others.” To determine whether an employee poses a “direct threat,” a court analyzes:

  • 風險的性質、持續時間和嚴重程度；
  • 風險的機率；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)).

值得注意的是，只有少數法院審理過HIV陽性醫護人員的權利。愛滋病法律計畫認為，這些案件的判決存在錯誤，與國會通過《美國殘疾人法案》（ADA）的初衷相悖。由於該領域的法律尚不明確，任何可能面臨就業歧視的醫護人員都應該諮詢律師或公共衛生倡導者。

評估雇主的歧視

雖然諮詢律師可能會有所幫助，但以下步驟可以幫助您開始考慮和評估潛在的就業歧視問題。

  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. 為了證明歧視主張（即，您因歧視而不是某些正當理由而被解僱、降職等），您必須能夠證明以下內容：
  • 雇主知道或得知您是愛滋病毒陽性或患有愛滋病；
  • 無論是否有合理的便利條件，您都具備履行該工作基本職責的資格；並且
  • Adverse action was taken against you because of your HIV or AIDS status and the pretextual reason given by the employer for the adverse action is false.
  1. 如果您的雇主知道您感染了愛滋病毒或愛滋病，請明確說明誰知道、他們是如何知道的以及他們何時發現的。如果您沒有告訴雇主，雇主還有其他途徑知道或懷疑您的愛滋病毒狀況嗎？
  2. 考慮一下您認為自己因愛滋病毒感染狀況而受到區別對待的原因，包括以下方面：
  • 處於類似情況的其他員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？
  • 雇主得知您的愛滋病毒狀況後不久就開始對您進行不利的待遇了嗎？
  • 您是否曾因病缺勤過一段時間，且返回工作崗位後是否開始受到不良治療？
  • 你的雇主對此事的描述是怎樣的？你該如何證明雇主的說法是錯的？
  1. Do you have any difficulty fulfilling the duties of your job because of any HIV-related health or medical issue? Does your condition prevent full-time work, or require time off for medical appointments, lighter duties or a less stressful position? You might want to try brainstorming to create a reasonable accommodation that you can propose to your employer. Here are some points to consider:
  • 該公司如何運作？實際的住宿安排如何？
  • 站在主管的角度想想，對於你提出的合理安排，主管可能會提出哪些異議？例如，如果你需要在某個時間離開去看醫生，誰來接替你的工作？

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.

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

這些法律有例外嗎？

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

醫護人員對愛滋病毒感染者的歧視是否仍是一個問題？

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.

歧視愛滋病毒感染者的醫生提出了哪些類型的論點？這些論點是否合理？

醫生通常試圖用以下兩個論點之一來證明對愛滋病毒感染者的歧視是合理的：

  • 「治療愛滋病毒感染者是危險的」（有些醫生因為對愛滋病毒傳播的非理性恐懼而拒絕治療愛滋病毒感染者）；
  • 「治療愛滋病毒感染者需要特殊的專業知識」（有些醫生錯誤地認為全科醫生沒有資格為愛滋病毒感染者提供護理，因此將患者轉診給其他醫療服務提供者）。

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.

法院和醫學專家對這些論點有何反應？

Courts and medical experts have responded to these arguments in the following ways:

  1. “治療愛滋病毒感染者是危險的”

醫生和牙醫可能會聲稱拒絕治療愛滋病毒感染者是合理的，因為他們擔心自己可能透過針刺或其他血液接觸感染愛滋病毒。然而，針對醫護人員的研究得出結論，職業暴露感染愛滋病毒的風險微乎其微，尤其是在採取普遍預防措施的情況下。

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)).

除了法律角度外，美國醫學會、美國牙科協會以及許多其他專業醫療保健組織都發布政策，認為拒絕為愛滋病毒感染者提供治療是不道德的。

  1. “治療愛滋病毒感染者需要特殊的專業知識”

在這些情況下，歧視主張的是非曲直取決於基於客觀醫學證據，病人所需的服務或治療是否需要轉診給專科醫生，或是否屬於服務提供者的服務和能力範圍。

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.

《美國殘疾人法案》中有哪些具體條款禁止醫療保健提供者歧視？

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:

  • 剝奪愛滋病毒感染者「充分、平等地享受」醫療服務的權利，或剝奪愛滋病毒感染者與其他患者一樣「受益」醫療服務的機會。
  • 建立接受醫療服務的“資格標準”，往往會篩選出愛滋病毒檢測呈陽性的患者。
  • 為愛滋病毒陽性患者提供「不同或單獨」的服務，或未能在「最全面的環境中」為患者提供服務。
  • 拒絕向已知與愛滋病毒感染者有「關係」或「交往」的人（如配偶、伴侶、子女或朋友）提供平等的醫療服務。

哪些具體的醫療保健行為構成對愛滋病毒感染者的非法歧視？

將上述 ADA 的具體規定應用於醫療保健實踐，以下做法是違法的：

  • 醫療保健提供者不能因為認為有愛滋病毒傳播風險或因為醫生只是不願意治療愛滋病毒感染者而拒絕治療愛滋病毒感染者。
  • 醫療保健提供者不能僅僅因為患者感染了愛滋病毒就同意僅在醫生常規辦公室以外的治療環境（例如專科醫院診所）中為患者進行治療。
  • 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.

醫療保健提供者不能限制治療愛滋病毒陽性患者的預定時間，例如堅持要求愛滋病毒陽性患者在一天結束時來就診。

根據聯邦法律，針對歧視有哪些潛在的補救措施？

To pursue a claim under the Americans with Disabilities Act for employment discrimination, the employer must have at least 15 employees. A person must file a claim with the Equal Employment Opportunity Commission (EEOC) within 180 days of the date of the discriminatory act. A person may remove an ADA claim from the EEOC and file a lawsuit in state or federal court.

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.

為了根據《康復法》提出索賠，個人可以向聯邦衛生與公眾服務部地區辦事處提出行政投訴和/或直接向法院提起訴訟。

根據《國家公平住房法》，如需就住房歧視提起索賠，個人可在違規行為發生後一年內向美國住房和城市發展部 (HUD) 提出投訴。個人也可在違規行為發生後兩年內提起訴訟。無論個人是否已向 HUD 提出投訴，均可提起訴訟。

資源

For more information about the MCAD complaint process see:

For information about filing a discrimination complaint under the ADA, see:

案件與辯護

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

新聞與新聞稿

To see news and press releases about HIV/AIDS in Massachusetts, go to: 新聞與新聞稿 – 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 written 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:

  1. Married, widowed, or divorced;
  2. A parent of a child;
  3. A member of the armed forces;
  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.

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 麻薩諸塞州政府, 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

  • Planned Parenthood – HIV/STI Testing and sexual healthcare
  • 芬威健康 – specializing in healthcare for LGBTQ communities and people living with HIV/AIDS
  • BAGLY – Boston Alliance of LGBTQ Youth
  • Boston GLASS – a variety of services for LGBTQ Youth, including HIV testing

 

雇主必須為身心障礙員工提供「合理便利」是什麼意思？

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：

  • 修改或改變工作任務或職責；
  • 制定兼職或修改的工作時間表；
  • 允許在正常工作時間內請假去看醫生；
  • 將員工重新分配到空缺職位；或
  • 對工作現場的實體佈局進行修改或購買電話放大器等設備，以允許聽力障礙人士完成工作。

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.

雇主是否必須批准合理住宿請求？

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.

在什麼情況下，對員工而言「合理的便利」會成為對雇主而言「過度負擔」？

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

  • The employer’s size, budget and financial constraints;
  • 實施所要求的住宿的費用；以及
  • 此調整如何影響或擾亂雇主的業務。

再次強調，我們會根據具體情況進行審查。

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.

有關詳細信息，請參閱：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.

有關詳細信息，請參閱：For more information, see: Doe v. Mutual of Omaha Insurance Company – GLAD.

資源

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

   

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 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