▸SECTION 1
Chapter 111 of the General Laws, as so appearing, is hereby amended by inserting the following new section:
“Section 183A.
(1) DEFINITIONS - The following words used in this section shall have the following meanings unless the context clearly requires otherwise:
“Non-invasive”, a test, procedure, or treatment in which the body is not penetrated or entered by a needle, tube, device, swab, or scope, or one in which no substance is administered orally or otherwise.
“Public entity”, the federal or any State or local government; any department, agency, special purpose district, or other instrumentality of the federal or a State or States or local government; and the National Railroad Passenger Corporation, and any commuter authority (as defined in section 24102(4) of U.S. title 49).
“Facilities”, all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.
(2) CANONS OF CONSTRUCTION
(a) This section and its parts shall be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of this section.
(b) This section does not invalidate or limit the remedies, rights, and procedures of any other Federal laws, or State or local laws (including State common law) that provide greater or equal protection for the health or medical autonomy or health or medical privacy rights of persons.
(c) The primary object of attention in cases brought under this section should be whether entities have complied with their obligations and whether violations have occurred. Accordingly, the threshold issue of whether a person has standing to sue should not involve much analysis.
(d) If any portion of this section is held to be void, the other parts of this section shall remain in full force and effect.
(3) PERSONS’ RIGHTS TO MEDICAL AUTONOMY AND PRIVACY –
(a) All persons shall have the right to the full and equal accommodations, advantages, facilities, services, benefits, and privileges of any place of public accommodation (as defined in M.G.L. Ch 272 § 92A), transportation, education, child care, travel, or public entity without being compelled to acquiesce to medical treatments, tests, procedures, products, or interventions (whether those are purportedly for the benefit of that person or others); collection of specimens; or sharing of personal health or medical information. And persons shall be free from discrimination, stigmatization, punishment, coercion, retaliation, or lesser or disparate treatment due to their choices regarding those matters. This right is recognized and declared to be a civil right.
(b) All persons within the Commonwealth of Massachusetts and residents of the Commonwealth of Massachusetts shall have the right to full and equal employment and contracting without regard to a person’s choice to engage or not engage with medical treatments, tests, procedures, products, or interventions (whether those are purportedly for the benefit of that person or others); collection of specimens; or sharing of personal health or medical information. And persons shall be free from discrimination, stigmatization, punishment, coercion, retaliation, or lesser or disparate treatment due to their choices regarding those matters. This right is recognized and declared to be a civil right.
(c) All persons may extend and exercise their rights under subsections 3(a) and 3(b) to make choices for their minor children over whom they have legal custody. This right is recognized and declared to be a civil right.
(d) In no case may a collective agreement or the consent of a group leader or other authority substitute for an individual’s informed consent.
(e) The foregoing rights in this section shall not be nullified, suspended, lessened, or otherwise infringed, whether by declaration of an emergency or other reason.
(4) RETALIATION AND COERCION
(a) No private or public entity shall discriminate against any individual because that individual has opposed any act or practice made unlawful by this section, or because that individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.
(b) No private or public entity shall coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this section.
(c) Any violation of subsection 4(a) or 4(b) shall constitute an actionable violation of that person’s civil rights under subsection 3.
(5) DIRECT THREAT TO THE HEALTH OR SAFETY OF OTHERS -
(a) This section does not require any entity to permit an individual to participate in or benefit from the services, programs, facilities, or activities of that entity when and only when that individual poses a direct threat to the health or safety of others.
(b) In determining whether an individual poses a direct threat to the health or safety of others, an entity must make an individualized assessment based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk. If the direct threat is alleged to be infection with a pathogen contagious to others, such ascertainment of the nature of the risk shall only be a test that: (i) has full approval and licensure by the agency authorized by law to issue such approval and licensure and is (ii) administered uniformly amongst persons rather than targeted to the person(s) exercising their rights under this section. Prejudice, assumptions, and generalizations are impermissible and shall not substitute for such an individualized assessment including all of the elements specified in the first sentence of this paragraph.
(6) REMEDIES
A person whose rights under this section have been violated may bring private civil action against the public or private entity and individual persons for (i) an injunction against any further violation; (ii) appropriate affirmative relief, including, but not limited to, admission or reinstatement of employment with back pay plus 10 percent interest; (iii) compensatory damages; (iv) punitive damages; and (v) any other relief necessary to ensure compliance with this section. The person is entitled to all such relief regardless of the method or manner used to violate their rights. No person shall be required to pursue or exhaust administrative or other remedies before bringing such private civil action.
Compensatory damages awarded for each violation of a person’s rights under this section shall be: (i) sufficient to fully compensate the person for all damages resulting from the violation; and (ii) when considered in light of the violator’s assets and income, sufficient to deter further violations; but in no event shall be less than $5,000.
A prevailing plaintiff is to be awarded reasonable attorney's fees and costs incurred in connection with said private civil action.
If a person delivers written notice specifying in what way(s) an entity or person has violated their rights under this section and requested relief, it shall constitute prima facie evidence of willful violation of this section if the violator fails to correct its violation(s) and deliver written notice of its correction(s) within 10 days. Such failure on the part of any public personnel shall nullify any indemnification or legal immunity they may have otherwise had under M.G.L. Ch. 258 or any other provision. That or any other violation a court finds to be grossly negligent, knowing, or willful requires all damages awarded to be doubled. Failure to fully and consistently disclose readily knowable, specific adverse effects and risks of the medical treatment, product, measure, or intervention the entity or person imposed on, requested of, or suggested to the person bringing suit shall constitute prima facie evidence of gross negligence.
(7) EXCEPTION FOR BONA FIDE OCCUPATIONAL REQUIREMENTS
Nothing in this section shall preclude drug or alcohol testing or any reasonable requirement for non-invasive medical testing or measures to fulfill bona fide occupational requirements such as but not limited to requiring a pilot to undergo a vision test or wear corrective lenses while piloting an aircraft.
▸SECTION 2
This act shall take effect 60 days after its passage.
Show raw text
SECTION 1. Chapter 111 of the General Laws, as so appearing, is hereby amended by inserting the following new section:
“Section 183A.
(1) DEFINITIONS - The following words used in this section shall have the following meanings unless the context clearly requires otherwise:
“Non-invasive”, a test, procedure, or treatment in which the body is not penetrated or entered by a needle, tube, device, swab, or scope, or one in which no substance is administered orally or otherwise.
“Public entity”, the federal or any State or local government; any department, agency, special purpose district, or other instrumentality of the federal or a State or States or local government; and the National Railroad Passenger Corporation, and any commuter authority (as defined in section 24102(4) of U.S. title 49).
“Facilities”, all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.
(2) CANONS OF CONSTRUCTION
(a) This section and its parts shall be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of this section.
(b) This section does not invalidate or limit the remedies, rights, and procedures of any other Federal laws, or State or local laws (including State common law) that provide greater or equal protection for the health or medical autonomy or health or medical privacy rights of persons.
(c) The primary object of attention in cases brought under this section should be whether entities have complied with their obligations and whether violations have occurred. Accordingly, the threshold issue of whether a person has standing to sue should not involve much analysis.
(d) If any portion of this section is held to be void, the other parts of this section shall remain in full force and effect.
(3) PERSONS’ RIGHTS TO MEDICAL AUTONOMY AND PRIVACY –
(a) All persons shall have the right to the full and equal accommodations, advantages, facilities, services, benefits, and privileges of any place of public accommodation (as defined in M.G.L. Ch 272 § 92A), transportation, education, child care, travel, or public entity without being compelled to acquiesce to medical treatments, tests, procedures, products, or interventions (whether those are purportedly for the benefit of that person or others); collection of specimens; or sharing of personal health or medical information. And persons shall be free from discrimination, stigmatization, punishment, coercion, retaliation, or lesser or disparate treatment due to their choices regarding those matters. This right is recognized and declared to be a civil right.
(b) All persons within the Commonwealth of Massachusetts and residents of the Commonwealth of Massachusetts shall have the right to full and equal employment and contracting without regard to a person’s choice to engage or not engage with medical treatments, tests, procedures, products, or interventions (whether those are purportedly for the benefit of that person or others); collection of specimens; or sharing of personal health or medical information. And persons shall be free from discrimination, stigmatization, punishment, coercion, retaliation, or lesser or disparate treatment due to their choices regarding those matters. This right is recognized and declared to be a civil right.
(c) All persons may extend and exercise their rights under subsections 3(a) and 3(b) to make choices for their minor children over whom they have legal custody. This right is recognized and declared to be a civil right.
(d) In no case may a collective agreement or the consent of a group leader or other authority substitute for an individual’s informed consent.
(e) The foregoing rights in this section shall not be nullified, suspended, lessened, or otherwise infringed, whether by declaration of an emergency or other reason.
(4) RETALIATION AND COERCION
(a) No private or public entity shall discriminate against any individual because that individual has opposed any act or practice made unlawful by this section, or because that individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.
(b) No private or public entity shall coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this section.
(c) Any violation of subsection 4(a) or 4(b) shall constitute an actionable violation of that person’s civil rights under subsection 3.
(5) DIRECT THREAT TO THE HEALTH OR SAFETY OF OTHERS -
(a) This section does not require any entity to permit an individual to participate in or benefit from the services, programs, facilities, or activities of that entity when and only when that individual poses a direct threat to the health or safety of others.
(b) In determining whether an individual poses a direct threat to the health or safety of others, an entity must make an individualized assessment based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk. If the direct threat is alleged to be infection with a pathogen contagious to others, such ascertainment of the nature of the risk shall only be a test that: (i) has full approval and licensure by the agency authorized by law to issue such approval and licensure and is (ii) administered uniformly amongst persons rather than targeted to the person(s) exercising their rights under this section. Prejudice, assumptions, and generalizations are impermissible and shall not substitute for such an individualized assessment including all of the elements specified in the first sentence of this paragraph.
(6) REMEDIES
A person whose rights under this section have been violated may bring private civil action against the public or private entity and individual persons for (i) an injunction against any further violation; (ii) appropriate affirmative relief, including, but not limited to, admission or reinstatement of employment with back pay plus 10 percent interest; (iii) compensatory damages; (iv) punitive damages; and (v) any other relief necessary to ensure compliance with this section. The person is entitled to all such relief regardless of the method or manner used to violate their rights. No person shall be required to pursue or exhaust administrative or other remedies before bringing such private civil action.
Compensatory damages awarded for each violation of a person’s rights under this section shall be: (i) sufficient to fully compensate the person for all damages resulting from the violation; and (ii) when considered in light of the violator’s assets and income, sufficient to deter further violations; but in no event shall be less than $5,000.
A prevailing plaintiff is to be awarded reasonable attorney's fees and costs incurred in connection with said private civil action.
If a person delivers written notice specifying in what way(s) an entity or person has violated their rights under this section and requested relief, it shall constitute prima facie evidence of willful violation of this section if the violator fails to correct its violation(s) and deliver written notice of its correction(s) within 10 days. Such failure on the part of any public personnel shall nullify any indemnification or legal immunity they may have otherwise had under M.G.L. Ch. 258 or any other provision. That or any other violation a court finds to be grossly negligent, knowing, or willful requires all damages awarded to be doubled. Failure to fully and consistently disclose readily knowable, specific adverse effects and risks of the medical treatment, product, measure, or intervention the entity or person imposed on, requested of, or suggested to the person bringing suit shall constitute prima facie evidence of gross negligence.
(7) EXCEPTION FOR BONA FIDE OCCUPATIONAL REQUIREMENTS
Nothing in this section shall preclude drug or alcohol testing or any reasonable requirement for non-invasive medical testing or measures to fulfill bona fide occupational requirements such as but not limited to requiring a pilot to undergo a vision test or wear corrective lenses while piloting an aircraft.
SECTION 2. This act shall take effect 60 days after its passage.