Disclosing one’s sexual orientation or gender identity can be dangerous in many parts of the country, and revealing HIV status, which still carries great stigma, can be even more dangerous. Revealing any of these private and confidential matters under inappropriate circumstances can result in violence, loss of employment, difficulty securing housing, and other social consequences. Nonetheless, in some cases, disclosure of HIV status is important.
In most states there is no legal obligation to disclose that you are HIV-positive to past partners. If you are uncomfortable contacting a past partner, but want them to know that they should get tested, you can choose to utilize a service that will contact past partners and notify them.
However, some states do require disclosure to current or future partners. Disclosure may be required in some states when you take specified actions, like donating organs or tissue, performing certain jobs, or sharing injection drug equipment. Moreover, failure to disclose to current or future partners is criminalized in some states. In Arkansas, you must disclose your HIV status if you visit a doctor or dentist.
In addition to criminalization statutes, early on in the HIV epidemic a number of privacy laws were enacted. These rules have lost their strength and have been applied less often over time. Public health officials now use information about individuals’ HIV statuses in order to encourage others to get tested.
Currently, laws providing a right to privacy related to HIV status or information vary from state to state. Often the rules only apply to information shared with your doctor or to your HIV test results. In most cases, there isn’t a significant monetary award to the victim if there is a violation.
Your common law ability to recover damages for claims of invasion of privacy or defamation also varies from state-to-state. Generally, lawsuits are appropriate when you have suffered substantial documented harms, and you may want to consult a litigator about whether you have a case. However, invasion of privacy and defamation cases are difficult to win. In most states, truth is a defense to libel or slander claims.
The federal Health Information Portability and Accountability Act (HIPAA) provides certain privacy rights in every state. It only applies to information that you disclose or share with your healthcare provider, and if there is a violation you do not have a right to sue. Rather you would have to file a claim with the Office of Civil Rights (OCR) of the United States Department of Health and Human Services (HHS). In general, if you do not keep your HIV status confidential, you will have greater difficulty asserting your privacy rights in connection with it.
Privacy and disclosure of one’s HIV status can be particularly sensitive in the employment arena. A potential employer is not allowed to ask you about your HIV status. However, if you are offered a job that is contingent upon completion of a medical exam, or you are already working in a particular job, an employer can ask you if you are HIV positive if they ask the same question to anyone in a similar position at the company. If you disclose information to your employer in order to request an accommodation under the Americans with Disabilities Act, your employer is required to keep the information confidential. However, if you disclose your status to others at work casually, there is no obligation to keep the information confidential.
