MA, Know Your Rights: HIV
Does Massachusetts have laws protecting people with HIV from discrimination?
Yes. Massachusetts has enacted anti-discrimination laws protecting people with HIV from discrimination in employment, housing, and public accommodations. In addition, there are a number of federal laws that protect people from discrimination based on their HIV status.
Who is protected under these anti-discrimination laws?
- People with AIDS or who are HIV-positive, even if they are asymptomatic and have no outward or manifest signs of illness.
- 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.
What laws protect people with HIV from discrimination in employment?
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
What do these anti-discrimination laws prohibit?
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.
The focus here is whether a person with AIDS or HIV was treated differently than other applicants or employees in similar situations.
The following are 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.
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:
- Have you ever been hospitalized or under the care of a physician?
- Have you ever been on workers’ compensation or received disability benefits?
- Have you ever had any medical problems that would make it difficult for you to do your job?
- What medications do you take?
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.
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.
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:
- The nature, duration, and severity of the risk;
- The probability of the risk; and
- 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.
Assessing Discrimination by an Employer
While it may be useful to consult with a lawyer, the following steps can be helpful in beginning to consider and assess a potential employment discrimination problem.
- 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.
- 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 or without reasonable accommodation; and
- 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.
- If your employer knows that you have HIV or AIDS, identify exactly who knows, how they know, and when they found out. If you have not told your employer, is there any other way the employer would know or suspect your HIV status?
- 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?
- 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:
- How does the company operate and how would the accommodation work in practice?
- Put yourself in your 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?
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
Are there any exceptions to these laws?
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?
Doctors typically try to justify discrimination against people with HIV with one of two arguments:
- “Treating People with HIV is Dangerous” (Some doctors refuse to treat people with HIV based on an irrational fear of HIV transmission); and
- “Treating People with HIV Requires Special Expertise” (Some doctors refer patients to other medical providers based on an inaccurate belief that general practitioners are not qualified to provide care to patients with HIV).
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.
How have courts and medical experts responded to these arguments?
Courts and medical experts have responded to these arguments in the following ways:
- “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 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.
- “Treating People with HIV Requires Special Expertise”
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, 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.
- 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.
What specific healthcare practices constitute illegal discrimination against people with HIV?
Applying the specific provisions of the ADA above to the practice of health care, the following practices are illegal:
- 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.
What are some potential remedies for discrimination under federal law?
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.
To pursue a claim under the Rehabilitation Act, a person may file an administrative complaint with the regional office of the federal Department of Health and Human Services and/or file a lawsuit directly in court.
To pursue a claim under the National Fair Housing Act for discrimination in housing, a person may file a complaint with the United States Office of Housing and Urban Development within one year of the violation. A person may also bring a lawsuit within two years of the violation. A lawsuit may be filed whether or not a person has filed a complaint with HUD.
For more information about the MCAD complaint process see:
- Massachusetts Commission Against Discrimination | Mass.gov
- Guide to the MCAD Complaint Process | Mass.gov
For information about filing a discrimination complaint under the ADA, see:
Cases & Advocacy
To see HIV/AIDS cases or advocacy in which GLAD has been directly involved with in Massachusetts, go to: Cases and Advocacy – GLAD and under “By Issue” click on “HIV/AIDS” and under “By Location” click on “Massachusetts.”
News & Press Releases
To see news and press releases about HIV/AIDS in Massachusetts, go to: News & Press Releases – 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:
- Married, widowed, or divorced;
- A parent of a child;
- A member of the armed forces;
- Pregnant or believes themself to be pregnant;
- Living separate and apart from their parents or legal guardian and is managing their own financial affairs; or
- “Reasonably believes himself to be suffering from or to have come in contact with any disease defined as dangerous to the public health [by the Department of Public Health] pursuant to Chapter 111.” The list of such diseases includes HIV.
- Minors may consent to therapies for the prevention of HIV, such as Pre-exposure prophylaxis if they are sexually active.
A physician or dentist is not liable for performing a treatment or procedure, or for prescribing an HIV preventative therapy, without informed consentof the parent or guardian if the physician relied in good faith on the patient’s representation of eligibility for consent under this law.
Medical or dental records and other information about a minor who consents to treatment or prevention of HIV are confidential. They may not be released except with the minor’s consent or judicial order. The statute, however, creates an exception to the confidentiality of a minor’s medical information when the physician or dentist “reasonably believes” that the minor’s condition is “so serious that his life or limb is endangered.” In this case, the physician or dentist must notify the parents or legal guardian of the minor’s condition.
What do the courts say about minors and informed consent?
In addition to the provisions of Chapter 112, Section 12F, courts have held that minors can provide informed consent for medical treatment if they are sufficiently intelligent and mature to understand the risks and benefits of treatment, regardless of financial independence or living situation. This is known as the “mature minor” rule.
Courts will typically assess the minor’s age, experience, education, training, judgment, conduct, and demeanor to assess whether, under a particular circumstance, the minor can appreciate the nature and consequences of treatment.
Courts will give particular weight to how close the person is to majority (18 years of age), the benefits of the treatment or test (which are significant in the case of an HIV antibody test), and the complexity of the treatment or test.
Can people under 18 access PrEP for HIV prevention without informing their parents?
Yes. If you are under 18 and sexually active, Massachusetts law enables you to access HIV-preventative medication (PrEP) from a healthcare provider or health clinic without needing the consent of a parent or legal guardian. State law ensures the privacy of young people to receive PrEP, or any other HIV prevention therapy, and medical providers can’t share that with anyone, including your parents, without your written consent. For more information, visit PrEP for Minors.
Does Massachusetts have reporting laws that require HIV or AIDS diagnoses to be reported to the Department of Public Health?
Yes. All states require that certain health conditions be reported to public health authorities in order to track epidemiological trends and develop effective prevention strategies. Massachusetts requires that licensed healthcare providers and healthcare facilities licensed by the Department of Public Health report HIV and AIDS cases by name to the Massachusetts HIV/AIDS Surveillance Program. AIDS cases have been reportable by name since 1983. In 1999 HIV cases became reportable using a unique identifier code. Due to funding conditions by the federal government, however, Massachusetts was forced to require HIV reporting by name beginning January 1, 2007.
The Department of Public Health has strong security measures in place to prevent the dissemination of HIV/AIDS reporting data. In addition, state regulations prohibit names from being shared with anyone else, including state or federal government entities (for more information, see HIV Reporting in Massachusetts for Consumers available at Mass.gov, in the Diseases & Conditions section under Physical Health and Treatment).
What laws in Massachusetts protect the privacy of medical information, such as HIV?
As noted above, the HIV testing statute prohibits a healthcare provider from disclosing to a third party the results of an HIV test without written informed consent. A more general Massachusetts privacy law applies in other contexts.
Massachusetts law (M.G.L. c. 214, § 1B) provides:
A person shall have a right against unreasonable, substantial, or serious interference with his privacy.
How do courts determine whether there has been a violation of this general privacy law?
As an initial matter, in order to be protected by this law, a person must have a “privacy right” in particular information. Courts have ruled that a person has a privacy right in HIV infection status because:
- HIV is personal medical information; and
- HIV is associated with significant social stigma and
Simply having a “privacy right” in certain personal information, however, does not mean that every disclosure is a violation of the law.
In analyzing whether there has been a violation of the statute, courts will determine whether there is any legitimate countervailing reason for the disclosure. In other words, a court will balance privacy rights versus other reasons that a defendant articulates as to why the disclosure was necessary in spite of the infringement upon privacy.
For example, if an employee reveals his or her HIV status to a supervisor, the supervisor may only reveal that information to others for a necessary business reason. It may be considered a legitimate business reason to discuss the employee’s HIV status with other management personnel in connection with making adjustments to a person’s job duties as a reasonable accommodation. It would not, however, be a legitimate business reason to tell the employee’s co-workers or non-essential management personnel.
If a daycare center or school revealed the identity of a child or student with AIDS to parents or other students, there is a good argument that such conduct violates Massachusetts law. There is no legitimate interest in disclosing the child’s HIV status, especially since the risk of transmission to others is minuscule.
Does a person with HIV have a constitutional right to privacy?
Many courts have found that a person has a constitutional privacy right to the nondisclosure of HIV status. Courts have based this right on the Due Process Clause of the U.S. Constitution which creates a “privacy interest” in avoiding disclosure of certain types of personal, intimate information.
The constitutional right to privacy can only be asserted when the person disclosing the information is a state or government actor – e.g., police, prison officials, or doctors at a state hospital.
Similar to the Massachusetts privacy statute (M.G.L. c. 214, § 1B), courts balance the nature of the intrusion into a person’s privacy against the weight to be given to the government’s legitimate reason for a policy or practice that results in disclosure.
Do healthcare professionals ever have an obligation to warn a third party about a client’s HIV status?
It is the AIDS Law Project’s view that there is no clear justification for such a breach of confidentiality under Massachusetts law, even if a counselor or physician learns that a client is engaging in unsafe sex or other risky behavior without having disclosed his or her HIV-positive status to a partner. Providers and consumers alike, however, should be aware that the case law in this area is still developing and remains unresolved. For a legal opinion on how to handle a specific situation, consult with a supervisor or lawyer.
Do provisions under Massachusetts law that permit health care providers, under certain limited circumstances, to warn third parties of potential harm apply to HIV status?
It is the AIDS Law Project’s position that these provisions should not be understood to apply to HIV.
Take, for example, the Massachusetts statute that permits licensed social workers and licensed mental health professionals to warn third-parties under certain limited circumstances (M.G.L. c. 112, § 135A). Under certain circumstances, Massachusetts law provides that a social worker may, but is not legally mandated to, disclose confidential communications, including situations when:
- The client has communicated an explicit threat to kill or inflict serious bodily injury upon a reasonably identified victim or victims with the apparent intent and ability to carry out the threat;
- The client has a history of physical violence that is known to the social worker and the social worker has a reasonable basis to believe a client will kill or inflict serious bodily injury on a reasonably identifiable victim.
There are virtually identical statutes for licensed psychologists (M.G.L. c. 112, § 129A) and licensed mental health professionals (M.G.L. c. 123, § 36B).
And, with respect to physicians, the Massachusetts Supreme Judicial Court stated in Alberts v. Devine in 1985, that physicians owe patients a legal duty not to disclose confidential patient medical information without the patient’s consent, “except to meet a serious danger to the patient or others.” The Court did not, and has not since then, articulated the meaning and scope of the words “serious danger.”
Neither of these provisions provides clear legal justification to breach the confidentiality of a client’s HIV status, in light of the specific Massachusetts statute prohibiting the involuntary disclosure of HIV status by a healthcare provider.
No court has ever interpreted the relationship between the HIV confidentiality statute and other general provisions permitting disclosure of patient information under limited circumstances by doctors or mental health providers. Therefore, providers who involuntarily disclose a client’s HIV status risk liability for invasion of privacy.
However, because this is an evolving area of law, it is crucial to consult an attorney with questions about specific situations.
HIV/STI Testing and Counseling Resources
- Planned Parenthood – HIV/STI Testing and sexual healthcare
- Fenway Health – 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
What does it mean that an employer may have to provide a “reasonable accommodation” for an employee with a disability?
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.”
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; or
- 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.
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 Answers 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.
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 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.
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, including:
- The employer’s size, budget and financial constraints;
- The costs of implementing the requested accommodation; and
- How the accommodation affects or disrupts the employer’s business.
Again, each situation is examined on a case-by-case basis.
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.
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.
For more information, see: Doe v. Mutual of Omaha Insurance Company – GLAD.
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 Answers, GLAD’s free & confidential legal information line.