If you’re HIV-positive and considering changing job, you’re forced to be more careful when planning for the transition. If you don’t, you could be denied a job or lose your health coverage. Some laws protect you, but you have to know your rights and responsibilities to take advantage of them.
“We live in a time in which the epidemic is constantly changing. The sand is shifting under our feet,” said Paul Crockett, an openly HIV-positive lawyer in Florida who literally wrote the book on legal issues involving HIV. His book, HIV Law: A Survival Guide to the Legal System for People Living with HIV, remains one of the few resources available that discusses this highly specialized field. [See below for books written about HIV law since this article was written.]
If not for new medicines and drug combinations that have improved the health of many HIV-positive people, HIV issues in the workplace would not be nearly as important. But the treatments that have helped some but not others add to the uncertainty of people living with HIV. Because of that uncertainty, Crockett said it is even more important to stay on top of your legal rights.
“In a time when there are so many questions that can’t be answered, it is important that we answer the ones we can,” he said.
He said that workplace issues are particularly important because American society forces us to identify ourselves by what we do. The changing nature of our culture, however, means that we rarely keep the same job for a lifetime.
“We are a culture in which people tend to define themselves by what they do,” Crockett said.
For some, the scariest part of going back to work is the job interview. Crockett said that while the rules on exactly what employers can ask about your health during a job interview are complex, there are three periods of the interview process and each has its own rules.
No health questions — or at least not any that are not asked of everyone — can be asked in the pre-employment, pre-offer phase. Once an offer of employment has been made, additional questions can be asked or the employee can request accommodation for a disability. Most people with disabilities will want to wait to discuss accommodations until the final stage when they have begun to work for the company.
In many cases, the law is on the side of HIV-positive people in the workplace. The Americans with Disabilities Act (ADA) and other laws “have a great deal to say about that,” Crockett said. According to ADA rules clarified by the courts, people with HIV — even ones who aren’t sick — are considered disabled and are allowed the accommodations that the ADA requires employers to make if asked.
If you are an employee living with HIV, you have both rights and responsibilities. The rights include the following, according to the National AIDS Fund’s Workplace Resource Center:
- To have medical information kept confidential.
- To request reasonable accommodation when you need it (But you cannot abuse that right. The ADA is intended to level the playing field for people with HIV, not give disabled employees an unfair advantage.)
- To be evaluated based upon your performance, not your health status.
- To be treated equally and fairly, but not better.
- To be treated as an effective contributor to your workplace.
- To have full access to the benefits, policies, programs and events of the company.
- To have an accessible work environment.
Among your responsibilities as an HIV-positive person is the duty to educate yourself about your disease and your employer’s benefits packages and policies. You are also responsible for notifying your employer if you need an accommodation, but you may or may not need to reveal the nature of your illness. Keep in mind that you are not allowed to ask for an accommodation that creates undue hardship on the employer. Seventy-eight percent of accommodations, according to government statistics, cost less than $1,000 and most cost nothing. They can include a 4-day workweek to allow more time to rest on weekends or a device to make lifting heavy objects easier.
Some employers may not want to know about your medical condition because the employer then could suffer legal ramifications from knowing, including actions that can be brought if they fail to keep your medical status private.
For many people with illnesses who are considering changing jobs, insurance is the biggest issue. If you are covered under your employer’s health plan, changing jobs means changing health insurance. That could result in costly exclusions for preexisting conditions. But if a few precautions are taken, the law is again on your side.
“You cannot delay between jobs,” Crockett said.
The magic number is 63. As long as the gap between jobs is less than 63 days, your will get month-for-month credit for preexisting condition exclusions on your new policy. That means that if your exclusions for preexisting conditions have already expired at your previous job, you can be fully covered from the first day on your new job. If, for example, you had already made it through half of an exclusionary period, you could pick up where you left off with your new insurance plan.
If the gap between jobs will likely be more than 63 days, Crockett said it is essential to take the optional, and often expensive, temporary COBRA insurance offered by your old employer. COBRA insurance is available to all employees for up to 18 months, but people with disabilities including HIV, are eligible for 29 months of coverage.
“Analyze your sources of income and your sources of health insurance before you quit your job,” Crockett said. “What will happen if your new job works out and what will happen if it doesn’t?”
Health insurance is not the only concern, either. For people with terminal illnesses, life insurance becomes a commodity that could get you cash. If your new employer offers life insurance coverage, accept it. Then, look into the possibility of viaticating it, Crockett said. Through viatication, terminally ill people can sell their life insurance for a portion of its face value, often between 50 and 80 percent. The investors who purchase the policy through a viatical company become the beneficiaries of the policy and get the full face value upon the employee’s death.
Crockett adds that is important to “take care of business properly where you came from and do your homework on where you’re going.”
Crockett admits that all the extra work getting things in order causes more stress during the transition.
“An additional burden is placed on HIV-positive people in this situation, as in all others, to empower themselves with additional information,” Crockett said. “Open your eyes. Take a look around. Paranoia is not required, but time and effort are required. It’s another measure of self-respect.”
And do not let an illness keep you from changing jobs just because it complicates matters, Crockett said.
“Don’t make your dreams any smaller because of the virus within you,” he said. “But HIV does raise some additional challenges.”