Your Rights - HIV Issues

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HIV Issues

Discrimination

Employment Discrimination on the Basis of HIV Status

People who are HIV-positive or who have AIDS are protected from employment-related discrimination under Massachusetts General Law c. 151B Section 4(16) 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 while the ADA coversworkplaces with 15 or more employees.

Who is Protected by This Law?

1) Persons with AIDS or who are HIV-positive, even if they are asymptomatic and do not have any physical limitations or outward signs of illness.

2) Persons who are regarded or perceived as having HIV.

3) Under the ADA, but not Massachusetts law, a person who does not have HIV, but who “associates” with a person with HIV – such as friends, lovers, spouses, roommates, business associates, advocateregivers of persons with HIV.

Claims of Employment Discrimination Based on Disability

There are two types of claims which may be brought against employers under disability discrimination laws.

1. Treating an Applicant or Employee Differently Based on HIV Status

An employer may not take adverse action against an applicant or employee simply on the basis that the person is HIV-positive or has AIDS.  This means that an employer may not terminate, refuse to hire, rehire, or promote, or otherwise discriminate in the terms or conditions of employment, based on HIV-positive/AIDS status.

The focus here is whether a person with AIDS or HIV was treated differently than other applicants or employees in similar situations.

Examples of unlawful discrimination:

• An employer may not refuse to hire a person with HIV based on fear that HIV will be transmitted to other employees or to customers.
• An employer may not refuse to hire or make an employment decision based on the possibility, or even probability, that a person will become sick and will not be able to do the job in the future.
• An employer cannot refuse to hire a person because it will increase health or workers’ compensation insurance premiums.

What is a “reasonable accommodation”?

Persons with disabilities, such as HIV/AIDS, may experience health-related problems which 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 a “reasonable accommodation.”

Examples of reasonable accommodations include:

• modifying or changing job tasks or responsibilities.
• establishing a part-time or modified work schedule.
• permitting time off during regular work hours for medical appointments.
• reassigning an employee to a vacant job.
• making modifications to the physical layout of a job site or acquiring devices such as a telephone amplifier to allow, for example, a person with a hearing impairment to do the job.

It is, with rare exception, the employee’s initial 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 the AIDS Law Project’s Legal InfoLine in order to strategize about ways to respond to such requests.

Does an employer have to grant a request for a reasonable accommodation?

An employer is not obligated to grant each and every request for an accommodation.  An employer does not have to grant a reasonable accommodation which 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.

When is a “reasonable accommodation” for an employee an “undue burden” for an employer?

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

• the employer’s size, and budget and financial constraints.
• the costs of implementing the requested accommodation.
• how the accommodation affects or disrupts the employer’s business.

Employment Inquiries About Health

During the application process:

Both Massachusetts law and the ADA prohibit an employer from asking a job applicant to submit to a medical exam or answer any medical inquiry until a “conditional” offer of employment is made.

For example, during the application process, an employer may not ask about:

• Any history of workers’ compensation claims or social security disability benefits.
• Whether you have ever been hospitalized or been under the care of a physician.
• Whether you have ever had any medical problems which would make it difficult for you to do your job.
• An employer MAY, however, ask whether an applicant has the knowledge, skill and ability to perform the job functions.

In Massachusetts, after an employer has made an offer of employment, it may require a medical examination (but not an HIV test) solely for the purpose of determining whether the employee is capable of performing the essential functions of the job with reasonable accommodation.  In addition, if the employer has more than fifteen employees, any medical exam or inquiry must meet the following requirements of the ADA:

• 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.

An employer may require a medical exam of a current employee only if the employer proves 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.

Massachusetts General law c. 111, Section 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.

Becoming Your Own Advocate

While it is useful to consult with a lawyer, the following steps can be helpful in beginning to consider and assess a potential employment discrimination problem on your own.

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, bad reason, or no reason at all.  A person can be legally fired for a lot of reasons, including a bad “personality match.”  A person cannot, however, be fired for a discriminatory reason specifically outlawed by a statute.

2) In order to prove a discrimination claim (i.e., that you were fired, demoted, etc. because of discrimination and not because of some legitimate reason), you must be able to show the following:

• the employer knew or figured out that you are HIV-positive or have AIDS.
• you were qualified to perform the essential functions of the job with reasonable accommodation.
• 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.

4) Consider the reasons why you believe that you are being treated differently because of HIV status, including the following areas:

• Have other employees in similar situations been treated differently or the same?
• Has your employer followed its personnel policies?
• Did the adverse treatment begin shortly after the employer learned of your HIV status?
• Have you been out of work due to illness for any period of time and did the adverse treatment begin upon your return to work?
• What will your employer’s version of events be?  How will you prove that the employer’s version is false?

• How does the company operate and how would the accommodation work in practice?
• Put yourself in the supervisor’s shoes.  What objections might be raised to the requested reasonable accommodation?  For example, if you need to leave at a certain time for medical appointments, who would cover your duties?

Housing Discrimination on the Basis of HIV Status

It is illegal under both Massachusetts General Law 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 their HIV status.

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.
 

Public Accomodations Discrimination / Access to Health Care

What kinds of public places are included?

Massachusetts Law defines a “public accommodation” as any “place” which is open to and accepts the patronage of the general public.  Mass. Gen. Laws c. 272, Section 92A

Federal Law, under the ADA, defines “public accommodation” more broadly as virtually any place of business, and also includes non-business entities such as schools.

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 and are not private membership clubs.

Discrimination in Access to Medical Care

Believe it or not, persons with HIV are still faced with discrimination by hospitals, doctors, dentists, and other health care 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.

Both an outright refusal to provide medical treatment and unnecessary referrals on the basis of a person’s disability are unlawful under Massachusetts law and the ADA.

Typical arguments raised by health care providers:

1) “Treating People with HIV is Dangerous.”

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 needlesticks or other exposures to blood.  However, studies of health care workers have concluded that 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 Bragdon v. Abbott that health care providers cannot refuse to treat people with HIV based on concerns or fears about HIV transmission.

In addition to the legal perspective, both the American Medical Association and the American Dental Association have issued policies that it is unethical to refuse treatment to a person with HIV.

2) Slightly More Subtle:  “I Am Not Qualified to Treat an HIV-Positive Patient.”

A slightly more subtle form of discrimination occurs when doctors or dentists claim that they are not qualified or equipped to treat the patient and refer that patient elsewhere.  In these cases, the merits of a discrimination claim depend upon whether, based on objective medical evidence, the services or treatment needed by the patient require a referral to a specialist or are within the scope of services and competence of the provider.

In United States v. Morvant, for example, a federal district court in Louisiana rejected a dentist’s claim that patients with HIV require a specialist for routine dental care.  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.

• Deny an HIV-positive patient the “full and equal enjoyment” of medical services or to deny an HIV-positive patient the “opportunity to benefit” from medical services in the same manner as other patients.

• Establish “eligibility criteria” for the privilege of receiving medical services which tend to screen out patients who have tested positive for HIV.

• Provide “different or separate” services to patients who are HIV-positive or fail to provide services to patients in the “most integrated setting.”

• Deny equal medical services to a person who is known to have a “relationship” or “association” to a person with HIV, such as a spouse, partner, child, or friend.

• A health care 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 health care 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 health care 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 health care 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 health care 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.

Remedies for Discrimination

Massachusetts Law

To pursue a claim under the Massachusetts Anti-discrimination statute (c.151B), any person who has been discriminated against in employment, housing or a place of public accommodation must first file a claim with the Massachusetts Commission Against Discrimination (MCAD).   Complaints of discrimination arising after November 5, 2002 must be filed within 300 days of the last discriminatory act or acts.  (Claims of discrimination arising prior to November 5, 2002 must be filed within 6 months).  There are very few exceptions for lateness, and GLAD encourages people to move promptly in filing claims.  After filing with the MCAD, a person can proceed with the case there.  The commission has full power to investigate the case, have a trial, and make an award of damages just as a court would.  Or, a person can remove the case from the MCAD and pursue the case in Massachusetts Superior Court.

Federal Law

To pursue a claim under the Americans with Disabilities Act for employment discrimination, a person must file a claim with the Equal Employment Opportunity Commission (EEOC) within 300 days of the date of the discriminatory act.  An employee filing a disability case with the MCAD does not have to file a separate claim with the EEOC.  There is a check-off on the MCAD complaint form to have the MCAD file the claim with the EEOC.  The EEOC will then defer to the MCAD’s investigation.  Similar to procedure under Massachusetts law, 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.

To pursue a claim under the National Fair Housing Act for discrimination in housing, a person may file a complaint in court with the United States Office of Housing and Urban Development in Boston.

Privacy / Confidentiality of HIV-related Information

The Massachusetts HIV Testing Statute

Massachusetts General Law Chapter 111, Section 70F provides that a physician, health care provider, or health care facility may not without first obtaining a person’s written informed consent:

Test a person for HIV;

Reveal to third-parties that a person took an HIV test; or

Disclose to third-parties the results of a person’s HIV test.

Consent to an HIV Test Must Be Written, Not Oral, 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.  A general release to a health care provider authorizing the disclosure of medical records and information is insufficient to authorize a health care provider to release information about HIV testing.  Under Chapter 111, Section 70F, the release must specifically authorize the disclosure of HIV test results and must state the purpose for which the information is being requested.

Remedy for Violation of HIV Testing Statute

A health care provider or facility which tests for HIV or discloses an HIV test result without written informed consent violates M.G.L. c. 93A, which protects consumers from unfair and deceptive trade practices.  This statute permits the recovery of compensatory damages for harm such as emotional distress, the recovery of 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.

The Meaning of Informed Consent

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.

In the context of medical treatment, informed consent means that a physician or health care provider must make the client aware of the nature, benefits, risks, and alternatives to treatment such that the client can make a voluntary, knowledgeable choice to accept or forego treatment.  The health care provider does not have to inform the client of every possible risk, but only the significant risks which a reasonable person in the client’s situation would want to know in order to decide whether to accept or forego treatment.

In the context of HIV testing, it is sufficient that a client understand:

• the general purpose and nature of an HIV antibody test including that the client will give a blood sample which will be tested for the presence of HIV antibodies.
• the type of information which is revealed by an HIV antibody test.

In order to give informed consent, an individual must have the minimum mental capacity to make an informed decision to take an HIV test. Competency is a threshold level of understanding about the nature and consequences of a decision one has to make and does not require a sophisticated level of intelligence or knowledge about HIV or AIDS.  There is no single legal criterion for competence.  Mental illness or retardation does not itself make a person incompetent to take an HIV test.

A person is competent to provide informed consent for an HIV test if he or she has:

• the ability to understand in general terms what an HIV test is.
• the ability to make a reasoned choice to have an HIV test.

• Do you understand you have to give a blood sample which will be tested for antibodies for HIV?
• Do you understand what HIV is and what the purpose of an HIV test is?
• Why do you want to take an HIV test?

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 which authorize a minor to consent to medical treatment or testing, such as an HIV test, without the consent of a parent or legal guardian.  Massachusetts General Law Chapter 112, Section 12F

This statute provides that a minor may give consent to medical or dental care if he or she is:

• married, widowed or divorced.
• a parent of a child.
• a member of the armed forces.
• pregnant or believes herself to be pregnant.
• living separate and apart from his parents or legal guardian and is managing his own financial affairs.
• “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.  The minor may only consent to care relating to the diagnosis or treatment of that disease.

Medical or dental records and other information about a minor who consents to treatment are confidential and may not be released except with the consent of the minor or upon a 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.

The “Mature Minor” Rule

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.

Courts will typically assess the minor’s age, experience, education, training, judgment, conduct and demeanor to assess whether under a particular circumstance the minor has the ability to 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.

Confidentiality and Privacy Beyond the Health Care Context

The Statutory Right to Privacy in Massachusetts

Massachusetts General Law Chapter 214, Section 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 c. 214, § 1B?

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:  (1)  HIV is personal medical information; and (2) HIV is associated with significant social stigma and discrimination.  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.  If there is a legitimate countervailing reason, the Court will ultimately find a privacy violation where the nature and substantiality of the disclosure outweigh the legitimate reason put forth by the defendant.  In other words, a court will balance privacy rights versus other reasons that a defendant articulates as to why a 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 day care 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 chapter 214, Section 1B.  There is no legitimate interest in disclosing the child’s HIV status, especially since the risk of transmission to others is minuscule.

The 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, doctors at a state hospital.

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

Warning Third Parties of Harm From Clients

A counselor or physician may learn that a client is engaging in unsafe sex or other risky behavior without having disclosed his or her HIV-positive status to a partner.  Many people have asked whether there is a legal basis to breach client or patient confidentiality under these circumstances.  It is the AIDS Law Project’s view that there is no clear justification for such a breach of confidentiality under Massachusetts law.  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.

Massachusetts law has various provisions which permit health care providers, under certain limited circumstances, to warn third parties of potential harm from a patient.

Physicians

In Alberts v. Devine, a 1985 Massachusetts Supreme Judicial Court Opinion, the Court stated 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.”

Licensed Mental Health Professionals

Massachusetts has a statute which permits licensed social workers and licensed mental health professionals to warn third-parties under certain limited circumstances.

M.G.L. c. 112, Section 135A, provides that a social worker may, but is not legally mandated to, disclose confidential communications if:

• 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 which 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 (chapter 112, section 129A); and licensed mental health professionals (chapter 123, section 36B).

Based on current Massachusetts law, there is not a clear legal justification to breach the confidentiality of a client’s HIV status.  As set out in the first section of this outline, Massachusetts has a specific statute prohibiting the involuntary disclosure of HIV status by a health care 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, it is very important to understand that the law is still evolving in this area and it is possible that in the future a court will decide that physicians, social workers, therapists or counselors may have an obligation to warn third-parties of potential exposure to HIV.