California HIV Laws: Criminal Liability, Privacy, and Discrimination

California HIV laws protect people living with HIV through medical privacy statutes, antidiscrimination rules in employment and housing, insurance safeguards, and a criminal framework that, since 2017, treats HIV the same as any other serious communicable disease. The protections sit across several codes, so what applies depends on whether the issue is a test, a disclosure, a job, a lease, an insurance application, or a criminal charge.

Criminal Liability for HIV Exposure and Transmission

Intentional transmission of HIV is a misdemeanor in California, not a felony. Under Health and Safety Code 120290, a person commits the offense only if prosecutors prove all four elements: the person knew they were infected, acted with the specific intent to transmit the disease, engaged in conduct posing a substantial risk of transmission, and actually transmitted it. When the exposure happened during a voluntary interaction, prosecutors must also show the other person did not know about the infection. The maximum sentence is six months in county jail.¹

Attempted intentional transmission, where no transmission actually occurred, is also a misdemeanor, punishable by up to 90 days in county jail. A separate provision in the same section makes it a misdemeanor, carrying up to six months, to disobey a health officer’s direct instruction to stop conduct that risks transmission.¹

This framework came from Senate Bill 239, signed in 2017. The bill repealed the former Health and Safety Code 120291, which had made HIV-specific exposure a felony punishable by three, five, or eight years in state prison, and eliminated felony enhancements that had applied to sex workers living with HIV and to blood or tissue donations by people who knew they were HIV-positive.² HIV is no longer singled out in the criminal code.

Nondisclosure of HIV status to a sexual or needle-sharing partner is not, by itself, a crime. Prosecutors need specific intent to transmit plus the other statutory elements.

Testing, Consent, and Minors’ Rights

Before a provider orders an HIV test, Health and Safety Code 120990 requires them to tell the patient the purpose of the test, what a positive result would mean, and that the patient can refuse. Consent can be oral or written, but the provider must document it in the medical record.³ California used to require written informed consent, but that requirement was dropped to make routine screening easier.⁴

Minors aged 12 and older can consent to their own HIV testing and treatment. Family Code 6926 allows any minor who may have been exposed to a reportable infectious disease to consent to diagnosis and treatment, and separately allows minors 12 and older to consent to care aimed at preventing a sexually transmitted disease. Parents are not financially liable for care provided under that section.⁵

Prenatal testing follows a slightly different rule. Health and Safety Code 125090 requires prenatal providers to inform the patient of the intent to perform an HIV test, the routine nature of the test, the risk of passing HIV to the baby, and the availability of treatments that significantly reduce that risk. The patient keeps the right to decline. If a patient’s records lack documentation of an HIV test during the final review of standard prenatal labs, the provider must draw blood for the missing tests unless the patient refuses after being informed. A positive result triggers counseling for the patient about implications for her health and the infant’s, and a referral to a specialist in prenatal care for HIV-positive patients whenever possible.⁶

Medical Privacy and Confidentiality of HIV Records

Two statutes do most of the work. The Confidentiality of Medical Information Act, Civil Code sections 56 through 56.37, restricts healthcare providers, health plans, and their contractors from releasing individually identifiable medical information without the patient’s written authorization. Health and Safety Code 121025 adds a specific layer for public health records containing HIV or AIDS information, keeping those records confidential except for authorized public health purposes or with the patient’s written consent.⁷

The statute allows limited sharing among public health agencies for disease surveillance and care coordination, and between health departments and providers linking HIV-positive patients to treatment.⁸

Employment Discrimination

The Fair Employment and Housing Act makes it illegal for employers with five or more workers to discriminate on the basis of physical disability, and the law explicitly lists HIV/AIDS as a qualifying disability.⁹ An employer cannot refuse to hire, fire, or treat an employee differently because of HIV status, and must provide reasonable accommodations unless doing so would create an undue hardship.¹⁰ The protection reaches compensation, promotions, training, and the general terms and conditions of employment.

Requiring an HIV test as a condition of employment without a legitimate medical justification, or sharing an employee’s HIV status with coworkers, can produce both a FEHA discrimination claim and a CMIA privacy claim. Complaints are filed with the California Civil Rights Department at no cost to the employee.

Housing and Public Accommodations

Because HIV counts as a disability under Government Code 12926.1, it triggers FEHA’s housing protections. A landlord or property manager cannot refuse to rent, apply different lease terms, or evict a tenant because of HIV status.⁹

Outside housing, the Unruh Civil Rights Act (Civil Code 51) guarantees full and equal access to business establishments regardless of disability, and it incorporates the FEHA definitions that include HIV/AIDS. Restaurants, hotels, retail stores, gyms, and other businesses open to the public cannot refuse service or treat someone differently because of HIV status. A violation of the federal Americans with Disabilities Act also counts automatically as an Unruh Act violation.¹¹

Insurance

Health insurance protections flow mainly from the federal Affordable Care Act, which bars health insurers from denying coverage or charging more because of a pre-existing condition, including HIV. California’s Health and Safety Code 1365.5 adds its own antidiscrimination rules for health care service plans and bars plans from using HIV testing to establish a person’s sexual orientation.¹²

Life insurance and disability income insurance work differently. The Equal Insurance HIV Act, in effect since 2023 under Senate Bill 1255, prohibits insurers from declining a life or disability income application based solely on a positive HIV test result. Insurers can still factor HIV into underwriting, but only when pricing is grounded in sound actuarial data and reasonably anticipated experience. A positive test cannot be an automatic disqualifier.¹³

When a life or disability insurer does request an HIV test, Insurance Code 799.03 requires written informed consent describing the purpose of the test, what results mean, and the applicant’s right to confidentiality. A positive result must be communicated through the applicant’s designated physician, and the insurer cannot disclose results without authorization.¹⁴

Partner Notification

California does not require anyone to disclose HIV status to a sexual or needle-sharing partner. Instead, Health and Safety Code 121015 lets a physician who has a patient’s confirmed positive result notify a person the physician reasonably believes to be a spouse, sexual partner, or needle-sharing partner. The physician must first discuss the result with the patient, offer counseling about transmission risks and prevention, attempt to obtain voluntary consent for notification, and tell the patient before contacting anyone. No identifying information about the patient may be revealed during the notification.¹⁵

This authority is permissive. No physician has a duty to notify. Local health officers can also alert people who may have been exposed, without identifying the infected person, and refer them to testing and care.

Penalties for Unauthorized Disclosure

CMIA violations are tiered. Under Civil Code 56.36, a patient whose medical information is negligently disclosed can recover $1,000 in nominal damages without proving actual harm, plus any actual damages. The responsible entity faces an administrative fine of up to $2,500 per violation.¹⁶

Knowing and willful violations cost more. A non-healthcare professional who deliberately obtains, uses, or discloses medical information in violation of the CMIA faces fines up to $25,000 per violation. Licensed healthcare professionals face a graduated scale: up to $2,500 for a first offense, $10,000 for a second, and $25,000 for a third or later violation. When the violation is for financial gain, the cap rises to $250,000 per violation plus disgorgement of profits.¹⁶

Public health records carry their own penalties under Health and Safety Code 121025. Negligent disclosure of a confidential HIV-related public health record carries a civil penalty of up to $5,000, paid to the person whose record was disclosed. Willful or malicious disclosure raises the penalty to between $5,000 and $25,000, plus court costs. These penalties stack on top of any civil lawsuit the affected person may file for compensatory and punitive damages.⁷

1
California Legislative Information. California Code Health and Safety Code 120290
2
California Legislative Information. Senate Bill 239
3
California Legislative Information. California Code HSC 120990
4
California Department of Public Health. Frequently Asked Questions About HIV Testing by Medical Care Providers in Health Care Settings
5
California Legislative Information. California Code FAM 6926
6
California Legislative Information. California Code HSC 125090
7
California Legislative Information. California Code HSC 121025
8
California Department of Public Health. Legal Authority for Provider and Local Public Health Department Staff to Share Patient HIV/AIDS Information for Case Management and Care Coordination
9
California Legislative Information. California Code Government Code 12926.1
10
California Legislative Information. California Code Government Code 12940 – Unlawful Practices, Generally
11
California Legislative Information. California Code Civil Code 51
12
California Legislative Information. California Code HSC 1365.5
13
California Department of Insurance. The Equal Insurance HIV Act – Changes in Existing Law
14
California Legislative Information. California Code INS 799.03
15
California Department of Public Health. Local Health Officer Authority to Use HIV Surveillance Data for Partner Services
16
California Legislative Information. California Code CIV 56.36