| Your Rights and Responsibilities
as an HIV-Positive Employee
Table of Contents
INTRODUCTION
PRE-EMPLOYMENT MEDICAL INQUIRIES
- Does an employer have a right to ask for medical information
about me?
- What if an employer asks whether I am taking any medication?
CONFIDENTIALITY AND DISCLOSURE
- Do I have to tell my employer, or prospective employer, my HIV
status?
- Is my confidentiality protected if I tell my employer my HIV
status?
DISCRIMINATION
- If my employer finds out that I am HIV positive or have AIDS,
can I be fired
or demoted? Can an employer refuse to hire me because I am HIV
infected?
- How do I prove that my employer fired me, or harassed me, because
I am HIV
positive ?
- What if my employer does fire me, or takes other adverse action
against me
at work, because I am HIV positive?
REASONABLE ACCOMMODATION
- What is a "reasonable accommodation"?
- How do I request a reasonable accommodation?
- Once I request an accommodation, does my employer have to grant
the request?
- Do I have to disclose my HIV status if I am seeking a reasonable
accommodation?
EMPLOYEE BENEFITS
General Questions
- My employer does not offer any type of insurance benefits to
its employees.
Isn't that illegal?
- If my employer does offer insurance or pension benefits, how
do I find out
about them?
Group Health Insurance
- Will I qualify for my employer's group health insurance plan
if I'm HIV
positive?
- What is portability, and how can I overcome the pre-existing
condition
limitation in my new health insurance plan?
- How will my new insurer know that I have portability?
- When I leave my job, can I take my health insurance with me?
- When I start working for a new employer that offers health insurance,
should
- I drop my COBRA coverage from my prior employer?
Life Insurance
- Will I be eligible for my employer's life insurance plan?
- If I do have life insurance through my employer, what happens
to it when I
leave my job?
- Why should I bother converting a life insurance policy?
Long-Term Disability (LTD)
- Will I be eligible for my employer's long-term disability insurance
plan?
- If I do have LTD insurance through my employer, what happens
to it when I
leave my job?
- Why should I bother converting a long-term disability insurance
policy?
TAKING A MEDICAL LEAVE
Family and Medical Leave
Act (FMLA)
- What is the Family and Medical Leave Act?
- How long will my job stay open if I have to take a medical leave
from work?
- Do I have to disclose my HIV status to qualify for FMLA leave?
- If FMLA leave is unpaid, how am I supposed to pay my bills?
Short-Term Disability (STD)
Leave
- How do I get short term disability insurance?
- How do I qualify for STD benefits?
- How long will STD benefits last?
- What happens if I can return to work within the STD period,
but cannot
return within the FMLA period?
Long-Term Disability (LTD)
Leave
- What do I do if I'm not able to return to work for a long time?
- Will I qualify for LTD benefits if I have an AIDS diagnosis?
- Once I qualify for LTD benefits, can I keep them forever?
- When and if I do return to work, what will happen to my LTD
benefits?
INTRODUCTION
As people with HIV/AIDS live longer and healthier lives, issues surrounding
rights in the workplace have multiplied. Fortunately, blatant discrimination
against HIV-positive employees has decreased considerably since the beginning
of the HIV/AIDS epidemic. However, HIV-positive employees still face concerns
involving confidentiality, insurance benefits, medical leaves and accommodations.
Issues involving employment and employee benefits are often complex. This
brochure will attempt to answer some of the most frequently asked questions
about the rights and responsibilities of HIV-positive employees. While this
brochure cannot possibly address every issue that might arise in the workplace,
it is a good place to start.
Because GMHC serves residents of New York City, this brochure relies on federal law
and New York State law. If you are a union member, you will have additional rights, as
governed by your collective bargaining agreement (union contract). If you work in a
state other than New York, your state or local laws may provide protections that are
different from those offered by New York law. Of course, federal law applies in all
states. If you work in a state other than New York, it is a good idea to contact your
local HIV/AIDS organization to obtain the most accurate information about your rights
and responsibilities as an employee working in that particular state.
This brochure relies on laws valid as of July 2003. Laws and regulations do change,
so it is important to seek advice from your local HIV/AIDS organization to confirm the
current state of affairs with regard to employment and employee benefits.
For assistance, please contact the Legal Services and Client Advocacy Department
at 212/367-1040.
PRE-EMPLOYMENT MEDICAL INQUIRIES
Q: Does an employer have a right to ask for medical information about me?
A: Your employer, or prospective employer, cannot ask you whether you
are HIV positive or generally whether you have any physical or mental impairments.
Employers cannot perform HIV antibody tests as part of a pre-employment physical
exam. Any questions asked, or medical information sought, about an employee's
physical or mental health must be directly linked to assessing the employee's
ability to perform her job duties. For example, an employer can request a physical
exam and a physical agility test to determine whether you are physically capable
of performing your job as a firefighter or a flight attendant. However, such tests
would not be relevant to a person applying for a job as a computer systems analyst.
Q: What if an employer asks whether I am taking any medication?
A: The most common illegal question posed by employers to prospective
employees is "Are you taking any medication?" The only legally permissible question
is "Are you taking any medication that could affect your ability to do the job?" If
an employer asks the question in an another fashion, assume that the question was
legally posed and answer the legal question. Absent major side effects, taking
HIV-related medication would not usually render a person unable to do her job,
and therefore would not need to be disclosed to an employer or prospective
employer. After your pre-employment interview, if you receive a job offer,
employers have the right to condition this offer on obtaining medical information
from you as long as the employer asks the same medical questions to every person
offered a job in your classification. This can include questions regarding what
medications you are taking as well as a medical history. Once you have a conditional
job offer, you cannot have the offer rescinded because your employer finds out you
are HIV positive. However, the employer can rescind the offer if they find out you
did not answer the questions truthfully.
CONFIDENTIALITY AND DISCLOSURE
Q: Do I have to tell my employer, or prospective employer, my HIV status?
A: In general, you are under no legal obligation to disclose your
HIV status to your employer or prospective employer. It is usually advisable not
to disclose your HIV status to your employer except in the two circumstances when
it might be necessary to make such a disclosure — when you are applying for
disability leave from work, and when you are requesting a reasonable accommodation
under the Americans with Disabilities Act ("ADA") or the New York Human Rights
Law. This brochure discusses both of those circumstances in detail. Please refer
to the sections entitled "Taking a Medical Leave" and "Reasonable Accommodation"
for more information.
Q: Is my confidentiality protected if I tell my employer my HIV status?
A: That depends. New York State's HIV Confidentiality law prohibits
health care providers and social service providers from disclosing your HIV status
without your written consent, but does not protect confidentiality in the workplace.
The Americans with Disabilities Act (ADA) protects the confidentiality of an employee's
medical information by requiring that employers maintain a separate and confidential
medical file, with the information contained in the file accessible only on a "need
to know" basis. But the law does not specifically address the confidentiality of
orally-disclosed medical information. You can best protect your confidentiality at
work by making sure that all disclosures about your medical condition are made in
writing by a health care provider directly to your employer's human resources
department. Ultimately, courts will need to decide whether the ADA's confidentiality
provisions extend to orally-disclosed information.
DISCRIMINATION
Q: If my employer finds out that I am HIV positive or have AIDS, can I be
fired or demoted? Can an employer refuse to hire me because I am HIV-infected?
A: An employer can't fire you, or refuse to hire you, or take any other
adverse employment action because of your HIV status. However, in New York, unless you're
a union member or subject to another type of employment contract, you are what is called
an "employee at will." That means that your employer can fire you for any reason, good
or bad, as long as it is not an illegal reason. An HIV-positive person can be fired
for reasons including, but not limited to, poor performance, excessive absenteeism,
or downsizing. Federal, state and local laws that protect people with disabilities
(including symptomatic or asymptomatic HIV infection and AIDS) from discrimination
only protect people from adverse employment actions taken due to their disabilities.
In other words, an employer can fire (or fail to hire) an HIV-positive employee as
long as the employer is not taking that action because the employee is HIV positive.
Q: How do I prove that my employer fired me, or harassed me, because I
am HIV positive?
A: At this point in the HIV epidemic, most employers in New York
do not fire someone immediately upon discovering their HIV status. Discrimination
is often much more subtle, and is therefore often difficult to prove. In fact,
once an employer has offered a non-discriminatory reason for the termination
(or other adverse employment action), the law puts the burden on the employee
to prove that the "legitimate business reason" offered by the employer is either
completely false or is a "pretext," and that the real reason for the adverse
action was her HIV status. If you think that your employer is treating you
differently than other employees because you are HIV positive, you should keep
a record or journal of events that may help prove such disparate treatment in
the event that you are fired or demoted.
Q: What if my employer does fire me, or takes other adverse action
against me at work, because I am HIV positive?
A: If you believe that your employer has taken adverse action
against you because you are HIV positive, you have several options regarding how
to enforce your legal rights. In New York, depending upon the size of your employer
and the location of your workplace, you can file a complaint with one of the following
administrative agencies: the New York State Division of Human Rights (enforcing
state law), the New York City Commission on Human Rights (enforcing city law), or
the Equal Employment Opportunity Commission ("EEOC") (enforcing federal law). Under
certain circumstances, a complaint filed with one of the local administrative
agencies can also be filed with the EEOC. You do not need to be represented by
an attorney to file a complaint with any of these agencies, however there are
time limits within which you must file a lawsuit alleging discrimination in the
workplace. Under federal law, a complaint generally must be filed with the EEOC
within 180 days of the most recent discriminatory action. Most state and local
laws provide longer time frames in which to file a complaint of discriminatory
treatment.
In addition to allowing people to file actions with the above-listed administrative
agencies, city, state and federal law also allow an aggrieved employee to file an action
in court. (The federal Americans with Disabilities Act requires that a complaint be filed
with the EEOC prior to filing in federal court.)
It is a good idea to talk to an experienced employment lawyer who can assess whether
your employer has behaved illegally. Call your local HIV/AIDS service provider for
referrals to appropriate attorneys.
REASONABLE ACCOMMODATION
Q: What is a "reasonable accommodation"?
A: Both the ADA and the New York Human Rights Law require that
employers make "reasonable accommodations" for employees with disabilities who
are otherwise qualified to perform the essential functions of their jobs. A
reasonable accommodation is a modification or adjustment to work duties, a work
schedule, the work environment, or the initial application process, that would
enable the employee to perform the essential job duties without imposing an
"undue hardship on the operation of the business."
Q: How do I request a reasonable accommodation?
A: The relevant laws do not set forth a particular method of
requesting a reasonable accommodation, but the burden is on the employee to
make the request. It may make sense to put your request for a reasonable
accommodation in writing, with a letter of support from your doctor, so that
your employer will be clear that you are invoking your legal rights, and so
that you can retain a record of your request. It is also a good idea to make
the request through your Human Resources or Personnel office because the Human
Resources staff will be most familiar with laws governing the workplace.
Q: Once I request an accommodation, does my employer have to grant
the request?
A: An employer is not required to make every accommodation
proposed. However, the law requires an employer to work with an employee to
arrive at an accommodation that will meet the employee's medical needs and
will not impose an undue burden on the employer.
The determination of whether an accommodation is reasonable is made on a
case-by-case basis, and depends upon the specific facts governing the employee's
medical needs and job duties. For example, if a person is a computer programmer
and is experiencing debilitating neuropathy in his legs due to a new medication
he is taking, it may be reasonable for his employer to permit him to work from
home via a modem hookup for the duration of his disabling symptoms. On the other
hand, if the person with neuropathy is a social worker employed by a social
services agency and his job requires him to meet with several clients a day and
facilitate daily group sessions offered on site, it would not be possible to
accommodate his medical condition by allowing him to work from home.
Q: Do I have to disclose my HIV status if I am seeking a reasonable
accommodation?
A: Legally, an employer can request medical documentation that
an employee is eligible to receive the protections afforded under the ADA or the
New York Human Rights Law. Thus, a request for a reasonable accommodation might
be an occasion requiring an employee to disclose that he is HIV positive. As
always, to best protect your confidentiality and your rights, any medical
information disclosed to your employer should be in writing from your health
care provider.
EMPLOYEE BENEFITS
General Questions
Q: My employer does not offer any type of insurance benefits to its
employees. Isn't that illegal?
A: No. Most private (that is, non-government) employers are
not required to offer to employees any type of group insurance or pension
benefits, other than short term disability benefits. Union members may have
a right to certain employee benefits pursuant to the terms of their collective
bargaining agreement (union contract).
Q: If my employer does offer insurance or pension benefits, how
do I find out about them?
A: Federal law requires that an employer provide a Summary
Plan Description ("SPD") for each insurance or pension benefit generally offered
to employees. The SPD describes who is eligible for the benefit, what the benefit
is, how to apply for the benefit, who is responsible for administering the benefit,
and how to appeal the denial of a benefit. Usually, employers provide an SPD when
the employee first qualifies for coverage. However, if you have misplaced your SPD,
your employer is required by federal law to provide it upon your request. So as not
to raise any red flags (e.g., by requesting a copy of the SPD governing disability
benefits), always request copies of all of your SPDs.
The following sections provide general information about maintaining group
health, life and disability insurance benefits. You should always consult your
SPDs to find out specific information about your particular employee benefits.
Group Health Insurance
Q: Will I qualify for my employer's group health insurance plan if I'm
HIV positive?
A: Yes. Under federal law, you will qualify for coverage under
your employer's health insurance plan regardless of your medical condition. However,
almost all health insurance plans have a pre-existing condition limitation prohibiting
new insureds from using the policy for treatment of a legally permitted pre-existing
medical condition (such as HIV or AIDS) for up to the first 12 months of coverage. Thus,
although you will be covered by your employer's group health insurance plan, you will
not be able to use your new coverage right away for HIV-related treatment, unless you
establish portability.
Q: What is portability, and how can I overcome the pre-existing condition
limitation in my new health insurance plan?
A: To be able to use your new health insurance plan right away for the
treatment of a pre-existing condition such as HIV or AIDS, you must show (1) that you
have been continuously covered by either another group or individual health insurance
plan for the duration of your new policy's pre-existing condition limitation period,
and (2) that you have had less than a 63-day gap between your prior coverage and your
new coverage. This is called establishing portability. Health insurance plans have the
right to limit portability to substantially similar classes of coverage (e.g., if your
prior health insurance plan did not offer coverage for hospitalization, but your new
health plan does, the new plan can apply the pre-existing condition limitation as it
applies to hospitalization costs). However, health insurers must disclose in writing
in the policy and the SPD, where applicable, that they are imposing this limitation.
If you have had less than a 63-day gap in coverage, your new insurer will "credit"
you for the time you have been covered by your prior insurer. Assuming you were insured
for the length of your new insurer's pre-existing condition limitation (which can not
exceed 12 months), you can use your new policy right away to cover treatment related
to your pre-existing condition. If you have had prior health insurance coverage within
the past 63 days, but had not been insured continuously by that insurance policy for
the duration of the new policy's pre-existing condition limitation, you will be "credited"
by your new insurer for the time you had been covered by your prior insurer, but you will
still have to wait for the balance of the pre-existing condition limitation before you
can use your new insurance for treatment of a pre-existing condition.
To make the concept of portability easier to understand, let's look at
an example:
John, who is HIV positive, worked for ABC Company for nine months and was insured under
its group health insurance plan. He started a new job for XYZ Company, which offered
health insurance to its new employees on the employee's first day of work. John's
new health insurance has a 12-month pre-existing condition limitation that prevents
newly insured members from using the new coverage for treatment related to a pre-existing
condition for the first 12 months of coverage. Because John had been covered by ABC's
insurance plan until his XYZ insurance plan started, XYZ "credited" John for the 9
months he had been insured by ABC so that he only has three months left on XYZ's
pre-existing condition limitation. After three months of coverage with XYZ, therefore,
John can begin to make HIV related claims under his XYZ plan. Until then, however, John
should keep his ABC coverage so that he can be reimbursed for HIV-related treatment.
(See the section about continuation of health insurance (COBRA) for more information
about retaining prior group health insurance coverage, below.)
Q: How will my new insurer know that I have portability?
A: When your coverage under any health insurance plan terminates,
that insurer must automatically generate a letter stating your dates of coverage
and the type of coverage you had under that policy. If you don't receive this
letter following the termination of your coverage, ask the insurer for it. You
should provide this letter to your new insurer to establish portability.
Q: When I leave my job, can I take my health insurance with me?
A: Yes. Under a federal law called COBRA, employers are required
to offer employees who are leaving a job for any reason the option of continuing
as part of the group health insurance plan for up to 18 months. (If you are leaving
your job to go out on a long-term disability leave, or become disabled within 60
days after leaving your job, you can request an 11-month extension of your COBRA
continuation by providing a copy of your Social Security Disability award letter,
within 60 days of your receipt of it, to the plan administrator.) This COBRA
continuation coverage, however, is at your expense.
COBRA applies to employers with at least 20 employees. If your employer has
fewer than 20 employees, the laws of the state in which you work might extend
COBRA-like protections to smaller employers. For example, if you work in the
state of New York, New York Insurance Law extends COBRA protections to employees
of employers with at least two employees.
Q: When I start working for a new employer that offers health insurance,
should I drop my COBRA coverage from my prior employer?
A: If you elect COBRA continuation coverage and you qualify for
a new group health insurance policy within the 18-month period, usually you will
be required by law to give up your COBRA coverage once you are eligible for coverage
under the new group health insurance plan. However, as in the example about John,
described above, if you will not have immediate portability into your new health
insurance plan, you are permitted to retain your COBRA coverage until the pre-existing
condition limitation period in your new policy expires.
Also keep in mind that most employers have probationary periods during which
new employees do not qualify for employee benefits. You may need to wait 30, 60
or 90 days before you are covered by your new employer's health insurance plan.
Although federal law counts that waiting time against the pre-existing condition
limitation period, and also provides a grace period in which you can be uninsured
for up to 63 days and still maintain portability, GMHC does not recommend that you
have any gap in your health insurance coverage. Therefore, if you have COBRA
continuation coverage from your prior employer, in order to ensure continuous
coverage, do not stop making premium payments until you qualify for coverage
under your new employer's plan.
Life Insurance
Q: Will I be eligible for my employer's life insurance plan?
A: That depends. If your employer offers life insurance to
employees when they first start work and/or during open enrollment periods
without requiring medical underwriting information, your HIV status will not
be an issue. This is the case for most larger employers. However, if your
employer or its insurer offer life insurance only if you can show you meet
the medical underwriting requirements for the policy, which is commonly
the case with smaller employers, your HIV status will preclude you from
eligibility.
Q: If I do have life insurance through my employer, what happens
to it when I leave my job?
A: New York Insurance Law requires that if you are going
to lose eligibility under a group life insurance policy, you must be given
the opportunity to convert your group coverage into an individual policy.
If you convert your policy (apply and make the first premium payment) within
31 days of your termination from the group policy, you are eligible for the
policy without needing to provide proof of medical eligibility. The
conversion (individual) policy is yours to keep forever so long as you make
timely premium payments.
If you work in a state that does not require a life insurance conversion
right as a matter of law, check the summary plan description (SPD) of your
life insurance policy to see whether the policy itself affords this right.
If you are leaving your job to go out on long-term disability, check the
SPD to see whether your group life insurance policy offers a disability waiver
of premium. This provision would allow you to remain a part of the group life
insurance policy, without having to pay premiums, for as long as you remain
disabled. If your policy has a disability waiver of premium but requires that
you wait several months before applying for it, you should convert to an
individual policy and maintain it until the disability waiver is approved.
In most cases, the insurer will return the premiums you paid for the
conversion policy.
Q: Why should I bother converting a life insurance policy?
A: Obtaining life insurance through an employer is often the
only option available if you're HIV positive, since people with HIV/AIDS can
lawfully be excluded from purchasing life and disability insurance policies.
A life insurance policy can provide future financial security to loved ones.
Or, it can act as an important financial asset to you if you decide to
viaticate (sell) your life insurance policy in the future. Some life
insurance policies allow you to apply for accelerated benefits if you have
a terminal illness. Consult your SPD for more information about whether your
policy offers accelerated benefits.
Long-Term Disability (LTD)
Q: Will I be eligible for my employer's long-term disability
insurance plan?
A: As with life insurance, that depends. If your employer
offers long-term disability (LTD) insurance to employees when they first
start work and/or during open enrollment periods without requiring medical
underwriting information, your HIV status will not be an issue. However,
if your employer offers LTD insurance only if you can show that you meet
the medical underwriting requirements for the policy, your HIV status will
preclude you from eligibility.
Q: If I do have LTD insurance through my employer, what happens
to it when I leave my job?
A: If you are leaving your job for any reason other than
going out on disability, you may have an opportunity to convert the LTD
plan into an individual policy. You must review your summary plan description
to see whether your employer's policy has a conversion provision. If
conversion is an option under the terms of the group policy, you will
usually have 31 days from the date of your termination from the group
policy to convert, without needing to provide proof of medical eligibility.
A conversion (individual) policy is yours to keep forever so long as you
make timely premium payments.
If you are leaving your job to go out on long-term disability, review
the summary plan description, which will explain how to make a claim for
benefits under the policy. See the "Taking a Medical Leave" section of
this brochure for additional information.
Q: Why should I bother converting a long-term disability
insurance policy?
A: Obtaining LTD insurance through an employer is
often the only option available if you're HIV positive, since people
with HIV/AIDS can lawfully be excluded from purchasing life and disability
insurance policies. An LTD policy can provide future financial security
to you, and can be an important part of financial planning.
TAKING A MEDICAL LEAVE
Your Employee Handbook and Summary Plan Descriptions are important
sources of information about how your employer's leave policies work.
Similarly, union members will often have specific job protections pursuant
to their collective bargaining agreement (union contract). This section
will provide generally applicable information about various types of
medical leaves.
Family and Medical Leave Act (FMLA)
Q: What is the Family and Medical Leave Act?
A: The Family and Medical Leave Act (FMLA) is a federal law
protecting the jobs of employees who need to take time off from work to care
for themselves, or a sick parent, spouse or child. The FMLA also offers job
protection to employees needing time off after the birth, adoption, or foster
care placement of a child. The FMLA offers unpaid leave with job protection
to eligible employees.
You are eligible for FMLA protections if your employer has at least 50
employees within a 75-mile radius, if you have worked for your employer for
at least 12 months, and if you have worked at least 1,250 hours in the 12
months preceding your leave of absence.
Q: How long will my job stay open if I have to take a medical
leave from work?
A: If you qualify for leave under the FMLA, you can receive
up to 12 weeks of job protection in a 12 month period. The 12 weeks need not
be taken all at once. The law requires that your employer determine when the
12-month period begins to run. Most employers begin the 12 month period on
the first day of the FMLA leave. Using this most common approach, if your
leave begins on September 10 of the year 2000, for example, you will be
eligible for 12 weeks of unpaid job protection between that date and
September 9, 2001. Check your Employee Handbook to review your employer's
calculation of the 12-month period.
If you return to work within the FMLA period, the law guarantees that
you will be reinstated to either your job, or a substantially equivalent
job providing equal pay, benefits, terms and conditions. Usually, your
employer will reinstate you to your job.
Some states (although not New York) have their own FMLA laws which
provide longer leave periods and/or apply to employees who work for smaller
employers. You can contact your local Department of Labor, or consult your
Employee Handbook, to find out more about your state's labor and employment
laws.
Q: Do I have to disclose my HIV status to qualify for FMLA
leave?
A: If you are taking FMLA leave to care for yourself,
you need to provide medical information showing that you have a "serious
health condition." Most HIV-related symptoms, if they are disabling you
from doing your job, will qualify as a "serious health condition." Depending
on the symptoms and conditions creating the need for a medical leave, it
may be enough for your doctor to describe your disabling symptoms without
disclosing your HIV status. However, your doctor may need to disclose your
HIV status in the context of your application for disability benefits which
may run concurrently with your FMLA leave.
Q: If FMLA leave is unpaid, how am I supposed to pay my bills?
A: After you use up your accrued paid days off (e.g., sick
days, personal days), if you're taking FMLA leave because you yourself are
sick, you will likely be able to apply for short term disability income. Short
term disability income will run concurrently with your FMLA leave. The FMLA
leave will provide job protection; the short term disability leave will provide
income protection. Some employers also offer salary continuation benefits based
on your years of service. Review your Employee Handbook to see whether your
employer offers such a salary continuation program.
Short-Term Disability (STD) Leave
Q: How do I get short-term disability insurance?
A: Many states, including New York, require employers to
offer a minimum level of short-term disability (STD) income protection. In
New York, most non-governmental employers must offer STD paying 50% of your
weekly income up to $170.00 per week for 26 weeks. See GMHC's Client Fact
Sheet about New York State Disability for more information about this benefit.
Some employers choose to supplement state-required STD income with private
STD insurance and/or salary continuation programs. These benefits will bring
you closer to your regular salary level during the short-term disability
period. Review your Employee Handbook and summary plan descriptions to see
whether your employer offers an enhanced STD income benefit.
Q: How do I qualify for STD benefits?
A: Usually, you will have to submit an application for
STD benefits. You can obtain this application from your Human Resources
or Personnel office, or, if you are a union member, from the union's
Pension and Welfare Fund office. The STD application usually has sections
for you, your employer, and your doctor to complete. Your doctor's part
of the application is the most important, and will require him/her to
list both a clinical diagnosis and information about your disabling
symptoms. Your doctor may therefore be required to disclose your HIV
status on this application form.
Q: How long will STD benefits last?
A: In New York, STD income typically starts after you
have been absent from work for seven days, and lasts for up to 26 weeks.
Again, check your Employee Handbook and summary plan descriptions for
more detailed information about your employer's benefits plans. You will
not automatically qualify for the entire period of STD benefits. Your
doctor may be asked to provide updated information depending on your
initial condition and symptoms.
Q: What happens if I can return to work within the STD period,
but cannot return within the FMLA period?
A: Some very large employers will offer extended job
protection throughout the STD period. Check your Employee Handbook to see
whether your employer offers this additional protection. In some cases,
it may be appropriate to seek the reasonable accommodation of holding
your job open longer than the FMLA period requires. (See the Reasonable
Accommodation section of this brochure for more information.) And
sometimes, your employer may not be legally required to extend your
job protection. Strategically, if your doctor believes that you will
be able to return to work within the STD period, it is a good idea for
your doctor to provide an anticipated return to work date so that your
employer is aware that you are expected to return to work within that
time period.
Union members may have additional rights to job protection pursuant to
the terms of their collective bargaining agreement (union contract).
Long-Term Disability (LTD) Leave
Q: What do I do if I'm not able to return to work for a long
time?
A: If your employer offers group long-term disability
(LTD) insurance, you should apply for benefits under that policy. Group
LTD policies typically pay 60% of your salary less Social Security Disability
Insurance (SSDI). (Read GMHC's Client Fact Sheet about SSDI for more information
about eligibility requirements for SSDI.) Group LTD policies also typically have
an elimination period of 60, 90 or 180 days during which time you must be disabled
but will not be eligible for LTD benefits. If your employer offers LTD insurance,
you must review your summary plan description for details about how your particular
group plan works.
Q: Will I qualify for LTD benefits if I have an AIDS diagnosis?
A: An AIDS diagnosis without chronic disabling symptoms will
not qualify you for private LTD insurance benefits. Most group LTD policies
define "total disability" as being unable to perform the material duties of
your job. Some group plans have more stringent definitions of "total disability,"
which require that you be unable to do any job for which you are qualified. Under
any definition, whether or not you have an AIDS diagnosis, your medical charts
must prove, and your doctor(s) must confirm, that you are functionally unable
to do your job, that you have been functionally impaired throughout the elimination
period, and that you will continue to be totally disabled from doing your job for
the foreseeable future. Review your SPD for specific information about the elimination
period, how your plan defines "disability," and other eligibility requirements.
Your health care providers are the crucial link to proving eligibility for
LTD benefits. If you are considering applying for long-term disability, talk
to your doctors to obtain their support before you start the process. Make sure
there is ample information in your medical chart notes about symptoms you experience
on a regular basis. Don't hesitate to talk to your doctors about how your symptoms
affect you at work. For example, if you are experiencing chronic diarrhea as a
result of your antiviral regimen, and you are using the bathroom several times
a day, or running out of business meetings so that you can make it to the bathroom
without having an accident at work, let your doctor know. That is precisely the
type of detailed information that can help you to qualify for LTD benefits.
Q: Once I qualify for LTD benefits, can I keep them forever?
A: LTD benefits are not guaranteed for life and are subject to
periodic review. For example, after you have been receiving LTD benefits for a
period of time (often two or more years), some group LTD policies broaden the
definition of "total disability" to being unable to perform the material duties
of any job for which you are reasonably qualified by virtue of education, training
and experience. This broadened definition may mean you no longer qualify for LTD.
Many group LTD plans also require a routine re-certification of your eligibility
for benefits.
Some insurers request monthly re-certification from your doctor; others might
not request a re-certification until the point at which the definition of
disability changes under your policy. In any event, your health care providers
remain the key players in this process, so keep them informed about how you are
feeling.
Sometimes, the LTD insurer will ask you to complete a form, or speak to a
claims investigator, about your day-to-day activities. You do not need to share
"good news" with your insurer, but you do need to experience chronic disabling
symptoms in order to continue to qualify for benefits. If you are asked to
provide information during a re-certification, describe your symptoms and how
they impact your life. If you need to nap during the day, or have difficulty
walking for long periods of time, let the insurer know. Similarly, if it is
hard to socialize with friends because you need to be by the bathroom at all
times, let the insurer know. By describing both your medical condition and
the impact your symptoms have on your daily life, you are more clearly presenting
to the insurer how difficult it would be for you to return to work.
Q: When and if I do return to work, what will happen to my LTD
benefits?
A: Returning to work from a long-term disability leave
raises many complex issues. Read GMHC's brochure "Life After Disability:
Returning to Work" for the answers to some of the most frequently asked
questions about this process.
This brochure is designed to provide general information which is accurate
as of July 2003. If you require specific legal advice about an employment or
insurance matter, you should contact your local HIV/AIDS services organization
for referrals to attorneys who specialize in these areas. You should also consult
your Employee Handbook and summary plan descriptions for specific information
about your employer's policies and benefits.
© 2003 Gay Men's Health Crisis
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