Part of the cycle of working when you have HIV may include leaving your job. But that can happen for different reasons. You may be harassed into leaving, be fired outright by your employer, or decide on your own that you don't want to continue working while disabled.

The important thing is to know who is making the decision and what its effects are on you. Keeping records during this time is often very important in order to maintain your legal rights and, in some cases, your job.

1

If I'm on FMLA leave (provided for under the federal Family Medical Leave Act) and I'm too sick to return, can they make me pay back the health care benefits I received while on FMLA leave?

No. If the reason you cannot return to work is beyond your control, you do not have to pay back health benefits paid by your employer. The continuation, recurrence or onset of a serious health condition that qualifies for FMLA leave constitutes circumstances beyond your control.

2

I was fired while I was on FMLA leave, and I think it was illegal. What should I do?

You cannot be legally fired for leave-related reasons. If you were fired while on leave and there was no other legitimate reason for your termination (such as the elimination of your job as part of general downsizing), then your employer may have violated FMLA and CFRA (California's Family Rights Act, which is very similar to FMLA). Termination because you took leave for your disability may also be an act of discrimination, as discussed above.

If you believe the employer violated the FMLA and CFRA, you should file a claim with the Department of Fair Employment and Housing (see the Resource List). You should also contact a lawyer about filing a lawsuit. Lawsuits are not always easy or practical, but a formal claim may be a good starting point for negotiating a fair settlement regarding your job or benefits. The ultimate outcome, however, may depend upon the records you kept while you were working and on leave, so start protecting yourself while you are still employed.

3

What do I do if I think my employer intends to fire me because of my HIV/AIDS?

As discussed in the previous section, it is illegal to fire a worker solely due to his or her HIV/AIDS status, or because the worker needs accommodations. If you think your employer intends to fire you due to your HIV/AIDS status, you should be prepared to notify (in writing, if possible) your employer that you believe that your impending termination is illegal because it is based on your HIV/AIDS status. If your employer has a Human Resources department, you should also consider notifying a representative from that department that you believe that your firing is illegal because it is based on your HIV/AIDS status.

If your employer fires you anyway, you should do as much as possible to document the circumstances of your firing. For example, if your employer calls a meeting to fire you, request a witness (such as a fellow worker) at the meeting who will be able to verify what the employer said at the meeting.

4

Does my employer have to give me a reason for firing me?

No. In fact, many employers refuse to tell a person, in writing or otherwise, why he or she has been fired from his or her job. If your employer refuses to tell you why you were fired, but you believe that it is because of your HIV/AIDS status, you should consider filing a charge against your employer with a public agency (see the previous section). When the agency conducts an investigation of your claim, they will ask your employer to provide them with a reason for your firing.

5

If my employer claims that I was fired due to my work performance, how can I see my personnel file to show that I was performing satisfactorily?

California law gives you the right to: (1) inspect your personnel file; and (2) get a copy of any document you signed.

To inspect your personnel file, consider writing a letter to your former employer requesting a copy of your personnel file. Be sure to reference California Labor Code 1198.5 and offer to pay any copy charges. If your employer is unwilling to send you a copy of your personnel file, make an appointment with your employer to see it at the office where the file is kept. When you view your file, you should take notes, documenting the date, title, substance and signatories of every piece of paper in your file. The employer is required to provide you with a copy of anything you have signed that your employer has in its possession. If your employer denies you these rights, you should file a claim with the California Labor Commissioner.

6

What if my employer is trying to get me to quit by harassing me or failing to reasonably accommodate my HIV/AIDS status?

If your employer harasses you or fails to reasonably accommodate you due to your HIV/AIDS status, you should notify the employer (in writing, if possible) that you believe that you are being harassed or discriminated against due to your HIV/AIDS status.

If your employer continues to harass you or discriminate against you, you may be able to quit your job and still bring a discrimination charge against the employer for "constructively" firing you. In other words, your treatment was so bad you had no choice but to quit. Under these circumstances, it may be possible for you to collect unemployment insurance benefits even though you quit your job.

Caution: It is frequently difficult to prove that a constructive firing has occurred. To do so, you must show that the harassment or discrimination was ongoing or severe enough to leave any reasonable person with no choice but to quit the job. You must also show that, before you quit, you notified the employer of the circumstances of the harassment and gave the employer an opportunity to fix the problem.

7

What do I need to know if I want to quit my job?

Before you quit a job, you might want to explore other options at work, such as asking for a leave of absence, or even for a modified schedule. (Leaves and reasonable accommodations are discussed in the previous section.) If you take a leave of absence or work a modified schedule instead of quitting, you will likely be able to keep other work-related benefits such as health and life insurance, which may be as important as any salary you receive.

8

Can I collect unemployment insurance benefits if I quit my job?

If you quit your job because you were medically unable to work, you are probably not entitled to unemployment insurance benefits, but you could get state disability insurance (SDI) benefits. (The California Employment Development Department administers both unemployment insurance benefits and SDI.) If, while collecting SDI, your condition improves so much that you are able to work, you should consider applying for unemployment benefits if your employer will not give you your old job back. Because of the way unemployment benefits are calculated, you may be entitled to file a claim for unemployment benefits well after the date you quit your job due to medical reasons.

If you quit your job even though you were medically able to work, you will probably not be able to collect unemployment insurance benefits unless you can show that you had "good cause" to quit. Proving good cause for quitting (which is frequently referred to as a "constructive firing") can be difficult, however. (See Caution above.) If denied unemployment insurance, you may be able to get help by immediately contacting the Unemployment Claims Project. (See the Resource List.)