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AIDS Legal Referral Panel of the
San Francisco Bay Area
582 Market Street, Suite 912
San Francisco, CA 94104
415.291.5454 510.451.5353
Legal Aid Society of San Francisco/
Employment Law Center
1663 Mission Street, Suite 400
San Francisco, CA 94103
415.864.8848
AIDS Benefits Counselors
470 Castro Street
San Francisco, CA 94114
415.558.9845
© 1998 AIDS Legal Referral Panel of the San Francisco Bay Area.
I. Introduction
Job Criteria Resumés & Cover Letters
III. Thriving On The Job Legal Protections On-the-Job Medical Inquiries Reasonable Accommodations Under the ADA and FEHA Disclosure to the Employer Medical Leave Under the FMLA and CFRA Discrimination and Harassment on the Job |
IV. Transitioning Out of Employment
V. Maintaining Yourself While Unemployed Income Benefits Health Care Benefits
Income Benefits Medical Benefits
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I. Introduction
Sometimes work is what you would give anything to avoid. At other times work is what you would give anything to be able to do again.
After all, the workplace serves many functions. Besides providing income, it can be a source of fulfillment, companionship and health benefits. Yet if you are HIV positive or have been disabled by HIV or AIDS, the workplace can also be a tremendous challenge. For example, you may be currently working but need to ask for a flexible schedule so you can rest, go to doctor appointments, or maintain your rigorous medication schedule. Or you may be out on disability, eager to try your hand in the workplace again, but concerned about numerous issues, such as, "What will happen to my current benefits?" "What should I say at interviews?" "Who has the right to know I'm HIV positive?" or "What will happen if the medications fail once I've started working?"
The availability of new drug therapies has increased the opportunity of many people with HIV to work, while still leaving much uncertainty. As a person with HIV, you need to know how to negotiate periods of illness and periods of wellness. In choosing a job you need to know which health benefits will best protect your health. Because you may need to take a medical leave in the future, you need to know which disability plan benefits to look for. As a person with a disability, you need to know your rights and your employer's obligations in hiring and promotion, and in accommodating your condition in the workplace. For persons with HIV, these issues create a "cycle" of work.
Because of the increasing need for information about the workplace, three organizations joined to create this booklet to help you deal with your own cycle of work. Those organizations - AIDS Benefits Counselors (ABC), the AIDS Legal Referral Panel (ALRP), and the Employment Law Center (ELC) - all stand ready to help you when you need it. They can be contacted at the numbers in the back of the booklet, or you can contact another AIDS support organization in your community.
Staff members of ABC, ALRP and the ELC who contributed to the creation of this resource are KT Albiston, Claudia Center, Mike Gaitley, Sal Valles, and Guy Wallace of the ELC; Daniel Fortuño of ABC; and ALRP's Betsy Johnsen, who also edited it. Layout and design were created by Annabelle Ison. Funding for the project was provided by ALRP, ELC and a grant from the San Francisco Department of Public Health AIDS Office. We thank all these people for participating in this labor of love.
II. Looking for a Job
Getting a job is pretty hard work all by itself. It's not any easier if you have spent the last few years fighting an illness full time. On top of that, the workplace may have changed a lot since you were last employed and your needs have undoubtedly changed as well.
This section discusses what you might need to look for in a job, and how to go about getting it. In addition to the information available here, you can check in with some agencies that exist solely to help people with HIV train for employment and find jobs. Positive Resource is one such organization serving San Francisco. (See the Resource List at the back of the booklet.)
JOB CRITERIA
1
How do I figure out what kind of job is best for me now?
Ask yourself what kind of job you want, what skills you have, and what type of environment you want to be in, such as professional, non-profit, artistic or technical. Consider whether you have the option of returning to your prior employer and, if so, whether you want to.
You may want to consider the level of intensity (i.e. stress) you want. Some people are not ready to take on a heavy duty job immediately after an extended period of illness or disability. Talk with your doctor about what he or she thinks are realistic levels of responsibility you can accept with your current health situation.
Establish a broad list of criteria of what you want and don't want in a job. BE REALISTIC, taking into account your health status.
2
Besides the kind of job and level of stress, what other job criteria should I use?
It's your choice, but we suggest that an important criterion is BENEFITS. Based on your current health situation, look at the benefits or insurance plans offered. We've listed several benefits you might look for, along with some criteria to use in evaluating them. Do not ask specific questions about benefits or insurance plans until after a job offer is made. This will raise suspicions. Detailed information can easily be found out after receiving an offer.
For all these benefits, look into how long you have to wait before you qualify. Some employers offer all benefits almost immediately, while with others you may need to work a year before qualifying for certain benefits, such as their long term disability plan.
3
If I think I might need a medical leave in the future, what kinds of things should I look for in a prospective employer?
Look for an employer that employs at least 50 employees at your worksite to be sure you will have medical leave rights under the Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA). Remember that you need to work for your employer for a year and for at least 1,250 hours within one year before you qualify for FMLA/CFRA leave.
Although you must have 12 months of service with an employer to qualify for FMLA/CFRA leave, those 12 months do not have to be continuous. If you are now on medical leave from an employer with whom you have a long record of service, you may want to return to that employer so you can qualify for FMLA/CFRA sooner. (The FMLA/CFRA is discussed in more detail in the next section.)
Alternatively, if the employer has less than 50 employees, review that employer's family leave policies in the personnel manual to see what leave your employer voluntarily provides.
RESUMES & COVER LETTERS
4
What should I reveal about my HIV status and related issues in my resume and cover letter?
The resume and cover letter are intended to get you in the door. It is important to remember that it is easy for a prospective employer to discriminate when reviewing resumes. This doesn't mean you should lie, but you may want to be careful what you disclose and there is no legal requirement to reveal your HIV status. Of course, there are several advantages if you conceal nothing. You don't have to worry about accidental revelations in an interview or by anyone you use as a reference. You can be completely open about why you left a previous job and how you've spent your time since then. There may also be some facts you feel are important to reveal to get the job. On the other hand, disclosing certain information may give the employer the opportunity to discriminate. It is your personal choice whether to reveal your status.
To avoid any possibility of discrimination, you may choose not to reveal your health or HIV status. Similarly, you may not want to reveal that you are recovering from drug addiction, if that is the case. You may also wish to conceal your activities in the lesbian and gay community, either because employers may discriminate directly against homosexuals or may identify them with people with HIV. On the other hand, you may feel it is important to you to disclose your activities, either to show certain accomplishments of yours that you have performed for lesbian or gay organizations, or to be openly gay when you are applying. Again, the choice is up to you.
If you have been out from work on disability, there will be a gap in your resume. (A gap may be less obvious if you create a technical resume that lists skills rather than a chronological resume.) If you don't state that you were on disability during this gap, you might explain that you were on a sabbatical of sorts, and that you had some goals you wanted to accomplish. For example, if you traveled a little during that period, indicate that you took some time off to travel. Or you could simply say, "I needed time off to deal with a family matter." Be sure you have thought through what these goals were so that you can talk about them during your interview. You can even elaborate on one small goal that you accomplished while on your disability leave. For example, if you painted your apartment and organized your closets at home while on leave, say that you decided to take some time off because you had the resources to do it and you decided to remodel your living space. Emphasize that it was a positive experience. If the gap is recent, tell the employer that you're really excited to get back to work. Finally, mention the reason for the gap in your cover letter. By doing so, the employer is less likely to eliminate you from the running before speaking to you. A gap in your resume won't necessarily prevent you from finding another job, but being unprepared to address it may.
5
What do I do when I get into the interview?
Be confident in your voice and your gestures. Listen carefully to the questions from the interviewer.
After each question is asked, take a second to think about it. Get your thoughts together and then respond. If HIV or your meds are causing any problems with your short term memory, do what you need to compensate for this. Take a pad of paper with you and jot notes down if you need to. It will make you look professional and methodical, so don't be afraid to do it. Just make sure to take in a small pad, not legal size, which might be overbearing.
When asked a question, try to pull from real life experiences to answer it. Real life examples are always far more passionate in their delivery, even if you have to edit the circumstances a bit so that you don't reveal confidential information, like your health situation. For example, if the interviewer says, "Tell me about a difficult experience you had and how you handled it," you may have a really good example of a difficult situation with a nurse at the hospital or during a home-care visit. Give the example, but you could adapt it to a more generic situation to avoid revealing your health status.
At the end of the interview, the interviewer will generally ask if you have questions. Try to ask one or two questions. One of the questions can be, "As part of your compensation plan, what benefits do you offer?" (Remember to keep the question general so as not to arouse suspicions.) If you are interviewing with the person who would be your supervisor, you could ask, "What is the most important quality you expect from an employee?" Listen to the answer. It may reveal how you will fit in as an HIV positive employee.
6
Is a prospective employer allowed to ask me about my HIV status or if I have AIDS?
Potential employers cannot ask you about your HIV/AIDS status or any other health situations you may have as a result of your HIV/AIDS status. If they do ask you, do not be shaken by the question. It is a personal choice whether to answer the question yes or no. Decide before you go to the interview how you would handle such a question. Pretend that it doesn't upset you and continue on with the interview.
A question that relates to your sexual orientation might also be getting at whether you have HIV/AIDS. There is no ban in California on asking questions about your sexual orientation, although discrimination based on either your sexuality or your HIV/AIDS status is illegal. Again, be prepared for such questions, which may be subtle. An interviewer might ask, in a warm and friendly manner, "Have you ever been in the hospital?" or "What types of prescription medication do you take, if any?" Even though less direct than an outright question about your HIV status, these questions still seek information you do not have to reveal.
The style of your response is up to you. You can say you are not taking meds, for example. However, if your employer later discovers that you lied during an interview, it may assert that it has grounds for termination and further assert that you have no grounds for future legal recovery because you were not truthful.
You can also respond to an illegal question by stating that you do not have to answer it. The latter method may not endear you to the interviewer, of course, and then it would be hard to prove discrimination took place at the interview stage if you were never even offered the job.
So, although an employer is not allowed to ask about HIV or AIDS status, it can be very hard to respond when an employer asks anyway. As with all aspects of an interview, come prepared. Think about your possible responses in advance. Also consider other personal information you do feel safe revealing, such as your hobbies or interests, so the interviewers have some way to get to know you.
7
Are there any exceptions to the ban on questions about HIV/AIDS?
The bans on asking applicants about HIV/AIDS come from the Americans with Disabilities Act of 1990 (ADA) and California's Fair Employment and Housing Act (FEHA), and apply to all employers with five or more employees. The rules bar direct questions about a particular disability (such as, "Are you HIV positive?"), indirect questions likely to elicit disability-related information ("Have you been able to take care of yourself over the past year?"), and most questions about prescription drug use ("What medications are you taking?" or "Have you ever taken AZT?").
There are a few exceptions. First, if during your application process you test "positive" for illegal drug use, then the employer may ask if you are taking any lawful medications that might have caused the test result. Second, if your HIV/AIDS is somehow obvious to the employer or if you have voluntarily disclosed your HIV/AIDS, and the employer reasonably believes that you will therefore need a "reasonable accommodation" to do the job, the employer may ask limited questions (i.e. about the accommodation, but unrelated to your medical diagnosis) about your need for a reasonable accommodation. Under no circumstances may an employer ask questions about your medical diagnosis.
A reasonable accommodation is a workplace modification that enables an otherwise qualified individual with a disability such as HIV/AIDS to perform the essential functions of the job. Employees with disabilities have a right to reasonable accommodation under state and federal law. For more information about reasonable accommodations generally, please see the following section.
California applicants approaching employers with fewer than five employees are not covered by the ADA or FEHA, but may be protected by the state constitutional right to privacy from intrusive and unjustified medical inquiries into HIV/AIDS status. However, a clear rule prohibiting inquiries of applicants regarding their HIV/AIDS status has not yet been established by the courts based on this privacy right.
8
What if I think I may need a reasonable accommodation or a medical leave from the employer in the future? Do I have to disclose my HIV/AIDS at the time I apply?
No. You are not required to disclose your disability at the time you apply for a job, even if you later need a workplace accommodation or medical leave. You may wait until you actually are seeking accommodation or medical leave - which may be months or years later - before you disclose anything.
9
What if I have received a "conditional job offer," but have not yet started working?
Unfortunately, the ADA does not prohibit post-offer, pre-employment medical examinations or inquiries - even those unrelated to job performance - so long as the information is kept confidential, and all entering employees in the same job category are subjected to the same inquiry. If an employer uses the results of such examinations or inquiries to revoke the job offer, the employer must prove that its reasons are "job-related and consistent with business necessity." As mentioned above, California applicants may still be protected by the state constitutional right to privacy from intrusive and unjustified medical inquiries into their HIV/AIDS status.