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Denied benefits/workplace issues/housing
Jul 15, 1999

Thank you in advancwe for your wonderful site. Many of my questions were answered in advance, hopefully saving time.

Here is the situation. I am HIV+ (diagnosed two years ago). Since that time, I have remained at work, although I have had to go on short-term disability twice due to illness. Presently I am going through another rough patch. I have had to change meds due to side effects and have had very bad reactions to three new regimes. I'm getting static at work for being out so much and I do believe my job is in danger. They are aware of my status and are very compassionate; but business is business.

Question 1: Can I be fired for being sick?

I applied for SSI disability a few months ago "in case" and, as I was well at the time, I was denied benefits. Now I'm not well and would really like to stop work - but I can't if I don't have disability to fall back on.

Question(s) 2: How long does an appeal take? If I have to stop work while fighting for disability, can I be evicted for nonpayment of rent? If I do get SSI and the amount does now allow me to cover my rent will I be forced to move? I've lived in my present apartment for six years and my best friend lives upstairs - she helps with shopping cleaning, etc. (don't know if this is a factor).

Question 3: If, by some miracle, I do win my appeal, can I work part time to make additional money for rent? I am presently in my second year of law school (believe me, I'm sure going to school is going to be a problem with SSI, but school work is easier than commuting/working 8 hours/) and have a part-time position as a research assistant to a professor. I think the ideal situation would be for me to take some time to adjust to my new drug therapy, continue in school and work part time.

I know this has been a long, somewhat disjointed letter, but hopefully you get the gist of what I'm saying.

Once again, thank you in advance for your assistance. You offer an indispensible service to people like me.

AB

Response from Ms. Breuer

Dear AB,

Thank you for writing, and for not just muddling through this without help! You are in the thick of several dilemmas, and you don't have to go through it alone.

Let's take your questions in order:

1. Can you be fired for being sick? It's not exactly the right question. You say your employer is aware of your status and compassionate, but not whether you have formally requested reasonable accommodation.

Step one: meet with your physician to discuss any accommodation that might make it possible for you to fulfill all of the essential functions of your job. (That's the language of the Americans with Disabilities Act, the law that covers your situation.) If you are having difficulty adjusting to new medication regimes, you are better off submitting a formal request for reasonable accommodation than just trying to suffer through it and work when you can.

Step two: Is there a skilled, professional human resources staff member at your place of work? That person can tell you what you need to know about the ADA and the FMLA. Is this a time to make use of medical leave under the Family and Medical Leave Act? It may be. That person can also tell you more about whether you're covered by a long term disability policy at work. You may find that your LTD coverage is far better than SSI.

If you do request an accommodation, have your physician submit it to your employer in writing so that your request is documented. Your job is too valuable to simply trust it to your employer's patience right now. For more information about your ADA and FMLA rights, I encourage you to check out the website of the National AIDS Fund at www.aidsfund.org. They have excellent articles about both.

Question 2: When you applied for SSI while you were well, you may have been following poor advice. Good advice about applying successfully for SSI is available to you at your local AIDS service organization, where there are benefits specialists who walk people through the SSI application process all the time. Please make use of their expertise. If you are in a rural area or small metropolitan area with limited AIDS service organization resources, telephone the AIDS service organization in your nearest large city and ask their advice. They are in the best position to answer your subquestion about how long an appeal takes, and they can direct you to an AIDS-knowlegeable attorney who can help you to keep your apartment in the process. Once again, this is too important to leave it to someone's whim. The fact that you're in law school encourages me to assume that you see the great value of knowing the law before you need it. Don't wait to turn to a lawyer when you've received an eviction notice.

Question 3: How much can you earn and retain your benefits? This is a question for your benefits specialist again. SSI spells this out very clearly.

So you may or may not really be a candidate for SSI. You may be a candidate for up to 12 weeks of leave under FMLA to adjust to your meds and possibly an accommodation at work so that you can continue to attend school and work whatever hours you feel you can work. Please don't give up such precious things as job, apartment and goals too easily for SSI. It has its own limitations.

Strength to you, and good luck. Use your resources--you have everything to gain. Thanks for writing.

Nancy Breuer



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