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LTD Termination after 6 months
Jun 15, 2001

I've been HIV+ since beginning of 2000, last negative test in July 1999. I work for a fortune 100 consulting company in an executive position. In June 2000, I had to start medication due to high viral load and because of the side effects, went on STD at my doctor's request. After two medical regiments, on Nov 2000 meds were stopped because of the side effects. Further neuropsych testing has shown I have a cognitive disorder from the HIV. Unfortunately, the cognitive disorder prevents me from performing the job I had before. THe beginning of May, the disability carrier told me they are terminating benefits effective July 1 and I would need to return to work; however my employer wont allow me to return to work without my doctor's authorization (which they wont provide). I got results yesterday and my viral load has went back up and I am starting medication again. I have started an appeal of the disability companies decision with an attorney.

Questions: Since I can not perform my previous job, even with accomodations, I believe ADA is not applicable. Is this correct?

My disability benefits state the benefits are applicable as long as I can not perform any position reasonable to my experience, education, etc. My position before is similar to a vice president at a fortune 100/500 firm. Clearly, I could go work at McDonalds. Can you tell me what criteria a 'reasonable position' is determined where disability would not apply? By salary? responsibilities? Thanks.

Response from Ms. Franzoi

The ADA prohibits discrimination by employers against qualified individuals with disabilities. In general, the ADA defines an individual with a disability as someone who has, or is perceived to have, or has a history of a physical or mental impairment that substantially limits major life activities. Although the ADA applies to you because you have AIDS, your employer is not discriminating against you because of your disabbility. If you are out on a medical leave of absence and your doctor has not released you to return to work, your employer is not discriminating against you because he won't allow you to return without a medical release. Your employer is probably following his sick leave policy and it is reasonable for your employer to require a release from your doctor before allowing you to return to work.

Usually a "reasonable position" is defined as a position with comparable resoponsibilites and pay within a certain range. For example, a legal secretary who due to a health condition cannot deal with a fast-paced, high stress position as a legal secretary at $60,000/year might be considered capable of working at a less stressful secretarial position for $45,000/year. I have seen cases similar to this. But I do not know what the exact guidelines are. I would need more information to help you. Did the insurance company give you a more detailed explanation of why they feel you are capable of working even though your doctor refuses to release you to return to work? Have you and your doctors provided all medical evidence and back-up to justify your claim to the insurance company? These are things your attorney should be able to help you sort out.

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