Q: Could my Social Security benefits be in danger if my health improves significantly or my T-cell count rises sharply?
A: Social Security conducts periodic reviews of all disability claims. They look for “significant improvement” in medical files. If you are concerned, keep your medical files up to date, and make sure your physicians document any and all symptoms related to your diagnosis or side effects from medications.
Q: I currently have SSDI and Medicare. If I decide to return to work, am I required to report that to Social Security and risk losing benefits?
A: According to Social Security regulations, if you are on SSDI and earning more than $700 a month (2009 figures), Social Security will enroll you in their nine-month Trial Work Period. If you work and do not report the income, Social Security will eventually find it by scanning your Social Security number at the Internal Revenue Service or the California State Tax Franchise Board. When that happens, they will retroactively apply the Trial Work Period to your earnings.
Q: What is the Trial Work Program, and how does it work?
A: The Trial Work Program allows you to work and earn all you want for nine months and still receive your full SSDI benefits. If you consistently earn under SGA (Substantial Gainful Activity) each month, nothing is likely to happen, except you will have used up all your Trial Work months. If you earn over SGA1 before taxes each month during or after the Trial Work Period and keep working at that level, they may decide you can support yourself. In this case, after you have worked at that level for nine months, they will continue your benefits for three more months, then place you on inactive status for the next three years. If you continued working, at that point your disability claim would end. The good news is that during the five-year period following the “suspension” of your monthly checks, if you need to stop working because of your health and your earnings drop below SGA per month, you are again eligible for benefits and will not have to reapply. Social Security will, however, conduct a medical review of your situation to make sure you still meet their definition of disability. In addition, your Medicare eligibility stays in place for a minimum of eight and a half years, measured from the beginning of your Trial Work months. If your job includes health insurance, Medicare will not affect your group eligibility. Note that the earliest your benefits could be cut off is one year from the first month you return to work, providing you are making more than SGA.
Q: How will going back to work affect my Supplemental Security Income?
A: Regardless of how much you plan to earn, you must notify Social Security if you return to work. Under SSI’s Work Incentive rules, $85 of your gross monthly earnings is exempt, but your benefit is reduced by $1 for every $2 that you earn over $85. If you currently get $870 a month from SSI (the 2009 California amount for a single self-supporting individual), and you earn $285 at a part-time job, you will end up with $770 from SSI plus the $285 in earnings from the job ($1,155 total). The SSI portion is figured by taking your earnings ($285) and subtracting the $85 exemption. This leaves $200. Since the benefit is reduced by $1 for every $2 you earn over the exemption, the $200 is reduced to $100, which is deducted from your monthly SSI check.
Q: What happens if I go to work, my benefits stop, and I get sick and have to leave work?
A: If you were on SSI, and lose your SSI dollars because of the amount you are earning, and then you get sick again, notify Social Security. You may be able to immediately go back on SSI. If you lose SSI dollars because of earnings for an entire year, Social Security may require you to reapply. If you were on SSDI, and lost your benefit because of work, you remain on your claim for three years after your first year back at work. Again, notify Social Security. They can reinstate your benefits, but may do a medical review of your situation. If you worked at over SGA for four years, finally your SSDI claim would end. You would still have another five years to qualify for benefits under expedited reinstatement. After that, you would have to reapply. Remember that your Medicare would continue for eight and a half years after your benefits were suspended because of earnings.
Q: Are there ways that I can reduce my earnings so that my benefits can stay intact?
A: Yes. You can reduce the amount of gross countable wages you earn by using Social Security’s “Impairment Related Work Expenses.” These include out-of-pocket medical expenses and some special transportation and equipment costs necessary for getting you to and keeping you in the workplace. Some common expenses such as acupuncture, chiropractor, massage therapy and counseling may count as Impairment Related Work Expenses if a doctor says they are necessary to keep you at work. Impairment related expenses are especially useful if, say, your gross earnings are around $1,100 (above SGA) and you want to reduce them to under SGA. If you earn under SGA, Social Security generally won’t alter your benefits at all.
Q: If I would like to enroll in a vocational program in preparation for a return to work, is there any way of accessing money to do so?
A: There are several ways. Vocational Rehabilitation (Voc Rehab) can pay for all sorts of vocational and educational programs. Federal job training money is available through Los Angeles’ One-Stop or Work Source Job Centers usually for short-term training. community colleges offer financial aid to people on permanent disability, depending on their income. Pell Grants, Cal Grants and other types of financial aid may be available to help as well at community colleges, state universities and private schools. People on SSDI or SSI can also use Social Security’s Plan to Achieve Self Support (PASS) to pay for long-term educational programs or even start up businesses. There are fact sheets on all these programs in this booklet.
Q: How does PASS work?
A: Disabled people on SSDI or SSI may apply for the PASS (Plan to Achieve Self Support) program. PASS allows you to set aside income (up to your full benefit, if you are on SSDI) to save for equipment, schooling, or other retraining which would lead to self-sufficiency and, ultimately, going off disability. PASS can be used to start a business, for special equipment for the blind, for full-time schooling, etc. For instance, if your SSDI is $800 a month and you wanted to retrain yourself to become a counselor, you could set aside the $800 every month to pay for books, tuition, etc. Social Security would "exclude" this income, and put you on SSI at the current rate of $870 per month plus Medi-Cal. People on SSI are not eligible for this kind of income replacement. On SSI you could set aside earned or other income and assets that otherwise might make you ineligible for SSI. You can use those funds to retrain yourself or to buy equipment that is necessary if you are to return to work. The advantage to a PASS plan is that it allows disabled people to use money to go to school or start a business and at the same time protect their benefit income. See the PASS fact sheet in this booklet.
The following questions have been answered by APLA’s Benefits Department.
Q: How might going back to work affect my COBRA or OBRA coverage?
A: Health insurance for people continuing through a COBRA or OBRA extension of a prior employer’s coverage will not be affected by returning to work. It is the time limitations of COBRA or OBRA and the arrival of Medicare that will affect how long the group coverage is continued, not whether you are working. However, should you return to work full-time and receive health insurance, COBRA cannot be continued once the new coverage covers any pre-existing condition.
Q: If I am receiving extended coverage from my prior employer due to long-term disability, will this be affected by my return to work?
A: A few large companies continue health insurance as long as you are receiving long-term disability benefits. If you return to work full-time, the long-term disability benefits will stop and so will the health insurance. COBRA, however, may be triggered due to the loss of health coverage. If you are returning to work part-time and the long-term disability will be paying residual or partial benefits, there is no uniform policy about continuing the health insurance. You should consult a benefits specialist or the Benefits Department at your prior employer regarding their policy on continuing health coverage in that situation.
Q: Will my individual health insurance policy be terminated if I go back to work?
A: No. If your health insurance is an individual health insurance policy, the policy can be continued upon returning to work.
Q: If I begin work, can my new employer or the insurance company refuse to cover me under their plan because of my previous illnesses or disability status?
A: When you return to the work force, you may be offered new health insurance if you work more than 30 hours per week. Federal law prohibits refusing group health insurance to any employee because of their health history or medical condition.
Q: Are the terms of my life insurance going to be altered if I return to work?
A: Returning to work will have little or no impact on life insurance issues with one primary exception. If your insurance is being continued without cost under a Waiver of Premium Benefit, that will cease once you return to work, i.e., you are no longer totally disabled. So premiums would again have to be paid. If it was a group life policy that was waiving the premiums, returning to work will terminate the coverage, but that termination will generally trigger an opportunity to convert the group life coverage to an individual whole life policy. Hopefully, of course, the new employer will offer group life as part of the benefits package, which will allow you the opportunity to add to the coverage you already have.
Q: I sold my life insurance policy to a viatical settlement company. Will this come back to haunt me if I return to work?
A: Many people worry that selling their life insurance to a viatical settlement company will complicate their return to work. This is not so. Once you sell your life insurance policy, it is sold. Returning to work will not bring the viatical company pounding on your door demanding their money back. Your recovery was one of the investment risks they accepted when they bought your policy. The money you got for it is yours and you can keep it.
If the insurance is group life and is being continued under the waiver of premium provision, you should contact the viatical settlement company and inform them of the return to work. That will give them the opportunity to convert the policy to an individual policy and pay the premiums for it. This really will not affect you, and the company will be able to keep the life insurance in force and protect their investment.
Q: Can I receive partial benefits from my disability insurance if I return to work?
A: Many disability insurance plans will pay a benefit if you return to work on a part-time basis. Since many plans measure partial disability by measuring the drop in income, it is possible to return full-time to a lower paying job and still be considered partially disabled. Residual benefits are computed by different methods, the most common being that a person will receive benefits in inverse proportion to the ratio of current income to the prior full-time income. Obviously this can get complicated, so make sure you consult the Summary Plan Description (available from employers or insurance companies) to determine how the benefits are calculated and how they define partial disability. If a formula is given, the only clear way to understand it is to actually put numbers in and compute it.
Q: Does disability insurance offer any incentives to go back to work?
A: Although not stated in all policies, most long-term disability and disability insurance policies will provide some kind of rehabilitation benefit if they believe it will save them money in the long run by helping you return to the work force. Under these programs, they will usually pay for training and occasionally some special equipment related to returning to work, provided, of course, they believe it will be cost efficient. All rehabilitation plans must be pre-approved by the insurance company.
Q: What is ADAP?
A: The AIDS Drug Assistance Program (ADAP) is a national prescription drug benefit program that was initiated by the federal government in April 1987. Initially ADAP was established to assist eligible participants with the cost of zidovudine, or AZT. AZT was the first drug approved by the United States Food and Drug Administration for the treatment of HIV disease.
Q: Will ADAP cover all my medications?
A: Currently California has one of the most generous ADAP plans in the country. The California ADAP formulary (list of available drugs) covers over 160 medications.
Q: Who is eligible for ADAP?
A: To be eligible for the California ADAP program applicants must:
Q: What documentation is required to apply for ADAP?
A: The following documents are required in order to apply for ADAP:
Q: Where do I get more information on ADAP?
A: The California State Office of AIDS (SOA) at 916.445.0553. Click here to reach SOA via the Internet, or call APLA at 213.201.1600 and ask to speak with a Benefits & Insurance program counselor.
Brad Sears from the HIV/AIDS Legal Services Alliance (HALSA) answered the following questions; some answers came from Take Control: Living With HIV/AIDS (AIDS Project Los Angeles, 1996).
Q: Can I be denied work because I have HIV?
A: No, you cannot be refused a job because of HIV. You can’t be denied a promotion because of HIV. The employer can’t claim you’ll cost more in insurance, or that you’ll get sick in the future.
Q: Can an employer refuse to hire me if I am very sick and may not be able to do the job?
A: Yes. If you’re sick and wouldn’t be able to do a job adequately, an employer can decide not to hire you. You would have to prove that you could do the job and get to work regularly either with or without “reasonable accommodation.”
Q: What is reasonable accommodation?
A: Reasonable accommodation means the employer must make changes in your job structure, duties, or environment in order to help you do your job the best you can. This could include letting you work different hours. It might mean giving you time off for medical care. Reasonable accommodation doesn’t happen automatically. You must ask for it. If you’re sick, you might not be able to do your job as well as you used to. In that case, you might want to tell your employer why. If you don’t ask for reasonable accommodation, you could be fired for poor performance. You don’t always have to tell your employer that you are HIV-positive when you ask for reasonable accommodation. Your employer may accept a letter from your doctor stating that you have a “disability covered by the Americans with Disabilities Act.” A reasonable accommodation is one that isn’t too hard on the employer. For example, you might need to leave early every day because of fatigue. Your job might require you to be there until the end of the day. If there is someone who can fill in for you, the employer should make the accommodation. If there is no one else who can do your job, your employer wouldn’t have to accommodate you. If your employer won’t accommodate you, your employer has to show that the accommodation costs too much money or is too difficult. There are no strict rules about reasonable accommodation. Every case is different. If you think your employer could accommodate you but won’t, talk with them. Explain your rights under the ADA.
Q: If I become symptomatic and frequently miss work due to doctor appointments, can I be fired?
A: Under the ADA, employers are required to make reasonable accommodations so that a disabled person can continue working. A reasonable accommodation is determined on a case-by-case basis. In general, however, if the doctor appointments do not prevent the employee from performing the essential functions of the job, then the ADA would entitle the employee to keep his/her job. If the essential functions of the job cannot be completed, the employer may terminate the employee.
Q: Could I be transferred to a different position if I experience difficulty in my current position?
A: This is another reasonable accommodation question. If there is a vacant position for which the employee would be suited, then the employee may be entitled to reassignment. What is considered reasonable depends upon the circumstances. If a reassignment would place undo hardship on the employer, then that employer would not have to offer the employee another position. It should be noted that if a person is reassigned to a position with a lower salary, then the employee’s pay may be adjusted downward.
Q: Can my employer require me to take an HIV test or submit to a medical exam?
A: The answer to this question depends on where you are in the employment process.
You cannot be asked any medical questions in a job interview or on a job application. Generally, you cannot be required to submit to a medical exam or an HIV test before you are given a job offer.
After you have been given a job offer, but before you are on the payroll, you can be required to have a medical exam or a drug test. Your employment can be conditioned on your successful completion of the medical exam or drug test. During this type of medical exam, you can be asked anything about your health. You can also be required to take an HIV test. However, if you are required to have a post-offer, pre-employment medical exam, everyone applying for the same job also has to be required to take the same medical exam. You can’t be singled out. Do not lie or fail to disclose medical information during a medical exam or a drug test. Failing to state the truth or to answer questions fully may become an independent (and legal) reason for your termination.
Once you are on the job, you can only be required to take a medical exam or answer questions about your health if your employer can show that the exam or questions are job-related and necessary. Only in very limited circumstances, such as in the health care field or the adult movie industry, would it be proper for an employer to ask a current employee about his/her HIV status or require an employee to take an HIV test.
Q: What happens to the results of any medical examination I may be required to take?
A: The information obtained as a result of a medical examination must be kept strictly confidential. This information must be maintained on forms separate from the general application forms, must be maintained in separate medical files and must be treated as confidential medical records. Only a limited number of individuals may gain access to information from these records.
Q: Can an employer let others know that I have HIV?
A: In general, your supervisor and employer are obligated to keep your HIV status confidential. This is especially true if they learn about your HIV status due to a required medical exam, health insurance records or a request for reasonable accommodations. The law provides special protection when your employer learns of your HIV status through one of these job-related communications.
However, when you voluntarily disclose your HIV status to your supervisor, the law does not provide as strong a protection. If you feel you want to tell your supervisor your HIV status for a reason not related to those listed in the paragraph above, talk with a lawyer first. If you then decide to disclose your HIV status to your employer, make sure he or she understands that you don’t want anyone else to know.
Q: What do I do if I think I am being discriminated against?
A: If you’ve been discriminated against, contact the Equal Employment Opportunity Commission (EEOC) or the California Department of Fair Employment and Housing. You have to file a complaint within 180 days of the time the discrimination occurred. You’ll want to talk to a lawyer as soon as possible, because it’s hard to prove discrimination.
1. It is important to note that an employee is not automatically entitled to reasonable accommodation under the ADA. In order for the ADA to protect you, you must let your employer know that you have a disability that is covered by the ADA and you must request a specific reasonable accommodation.
2. An employer may require that you provide a note from your physician before providing you with reasonable accommodation.
3. Note that the physician does not have to disclose that you have HIV in order for you to access the protections of the ADA. A physician’s note need only say something along the lines of, “I am treating patient ‘X’ for a disability covered by the ADA.”
4. It is helpful and customary that the physician also includes suggestions on how your employer can best accommodate you. For example, if you have been diagnosed with wasting, your physician may include in the note that you need a padded chair and access to refrigeration for dietary or nutritional supplements.
5. The next step is for your employer to determine the essential functions of the job. The essential functions of the job are the aspects of the job that must be done, the duties for which the position was created. It does not include the employer’s personal preferences as to how they would like to see the job performed or things that the last employee might have done above and beyond the essential duties.
6. Then you and the employer must decide what accommodations are reasonable for this job, and whether or not you will be able to perform the duties of the job with those accommodations. Be honest with your employer about your abilities, and don’t overstate or understate your case. You’ll want to work out a fair agreement with your employer.
Q: What do I do about gaps in my resume?
A: Many people have gaps in their resumes. Remember that having an employment gap doesn’t mean you won’t be considered for another position. If you’re qualified, an employer will usually consider you for a position, even with the gaps. Fill gaps in your resume with time you spent in school or performing volunteer work or internships. But be prepared to address the issue by formulating your responses before you get to an interview.
Q: What should I say about being on disability with HIV?
A: Be aware that some people may know little about HIV/AIDS, some people don’t want to know anything about HIV/AIDS, and some people may be hostile. If you want to disclose your HIV status to a prospective employer, try to interview where you will get a sympathetic hearing.
Q: I feel like I need to say something about the gap in my resume. What can I say?
A: Rehearse what you’re going to say before interviews. If you feel the need to bring up your HIV status, then plan what you will say. If some of the truth helps, you could raise your health issues without mentioning HIV/AIDS. You could simply say, “I needed time off to deal with an illness in the family” or “I had to attend to a personal or family matter.” You are not required to discuss your previous or present health status. You could also conjure up other reasons for the gap: you started your own business, you traveled, went to school, etc. An employer may ask for additional information, but remember, you are not required to give it. If possible, mention other constructive things that you did or learned during your time off. This could include self-evaluation, reading, writing, hobbies, classes or seminars. Discuss how they’ll help you be a better employee. If your gap is recent, tell the employer that you’re really excited to get back to work. A positive attitude is especially important, because it shows the employer you resolved the issue and are ready to go back to work. Finally, if you plan to discuss the gap in your resume, it’s probably best not to mention the reason for the gap in any cover letters you send out. Get the interview first, worry about the gap later. Always remember: A gap in your resume won’t necessarily prevent you from finding another job, but being unprepared to address it may.
Q: Do I legally have to disclose my HIV status to potential employers?
A: No. There is no legal requirement to tell a potential employer about your HIV condition. However, if a potential employer asks a direct question during an interview about whether you have any conditions the company should know about or might have to accommodate, you should answer the question if you know you will be asking for “reasonable accommodation” (time off for doctor’s appointments, for treatments, or other special considerations). Otherwise, the employer could fire you for not answering truthfully during the interview process. But if you are HIV-positive, and have no special needs, and only a normal schedule of doctors’ appointments, and then your condition changes on down the line, the employer cannot fire you for requesting “reasonable accommodation” for your condition.
Q: Can employers find out that I collected State Disability or Social Security?
A: No. The lawyers at HIV/AIDS Legal Services interpret the laws on this issue to mean that employers cannot ask about Workmen’s Comp or disability claims. They can ask broader questions, for instance, “How many days ‘leave’ did you take while at your last job?” Both State Disability and Social Security claims are “confidential.” These agencies aren’t supposed to discuss claims with anyone unless they have your permission (except for certain government agencies, like Immigration and the Internal Revenue Service). If you’re wondering what to say about supporting yourself during a long employment gap, make up a story: you inherited money, won the lottery, got a grant, your family supported you while you took care of sick relatives, or went to school, etc.
Q: If I need some accommodation, what do I have to say about my condition?
A: If you tell a prospective employer that you have a condition that may require some accommodation, the employer can ask about the nature of your condition and may want a letter from your physician. You and your doctor can describe the accommodations you need, without specifically saying that your condition is HIV or AIDS. If you are going to work for a company with “small group” health insurance (fewer than 50 employees), you may have to fill out a health questionnaire. The insurer can ask whether you have AIDS, if you are HIV symptomatic, how recently you have seen a doctor, what medications you are taking, etc. The employer usually distributes these questionnaires to new employees and may read the results. In this situation, your HIV condition could increase the rate the company pays for small group health insurance.