Work
Services
Work
It! Guide Frequently
Asked Questions
Social Security and
Work
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 $670 a month (2008
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 2008
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.
Insurance
and Work
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.
AIDS Drug Assistance Program (ADAP)
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:
- Be living in California. Special note – applicants are not required
to be United States citizens or US legal permanent residents. Legal residency
in the United States is not required for participation in the ADAP program.
- Be at least 18 years of age
- Be HIV-positive
- Have a federal adjusted gross income of less than $50,000 a year.
- Not be covered 100% by Medi-cal or any third party payer.
Q: What documentation is required to apply for ADAP?
A: The following documents are required in order to apply for ADAP:
- Proof of California residency – Utility bills, rental agreement,
leases or mortgages
- Picture Identification – California drivers license, California
identification card, passport, school ID or immigration card are all acceptable
- Proof of income – Federal and state income tax returns, recent
pay stubs, public assistance benefits verification letters or Social Security
award letters
- Letter of HIV diagnosis - A letter from a licensed physician is required
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.
How the ADA (Americans with Disabilities
Act) Protects You
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.
Pre-offer
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.
Post-offer, Pre-employment
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.
Post-employment
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.
Requesting a Reasonable Accommodation
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.
Interviewing and Resume Writing
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.
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