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When Leaving May Be the Right Thing to Do

By Michael O'Connor

June/July 2002

When Leaving May Be the Right Thing to Do
Illustration by Michael Storc

If you are HIV-positive and employed, you may be entitled to unpaid leave to look after your health.

The Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) both allow certain employees to take 12 workweeks of unpaid job-protected leave per year.

This article presents some of the most common questions about taking this type of leave. It is merely an informational overview of these acts, and should not be taken as legal advice. If you have specific legal questions about your circumstances, please contact an attorney.

Who is eligible to take this leave?

Lots of people are eligible. Regarding HIV/AIDS, you are eligible to take this leave if you have a serious health condition that prevents you from working, and:

Do the 12 months of service with the employer have to be continuous or consecutive?

No. The 12 months do not have to be continuous or consecutive. All time worked for that employer is counted.

Do the 1,250 hours include paid leave and other vacation days?

No. The 1,250 hours include only hours actually worked for the employer.

Do I have to take all 12 weeks leave at one time?

No. You can take up to 12 weeks off at one time if you need to or you can take the time off on an intermittent basis or as a reduced work schedule, depending on your needs.

Do I have to tell my employer what my illness is, that I'm HIV positive?

No. You do not have to tell your employer you are HIV-positive or have AIDS. If you request leave, your employer may ask you to provide medical certification of a serious health condition, to ensure you are eligible for this leave, but you do not have to disclose your HIV status. The medical certification should contain the following:

Do I have to give my employer a copy of my medical records or sign a release of medical records?

No. The employer may request a certification of a serious health condition. This is a statement from your doctor stating that your medical condition makes you temporarily unable to do your job; it does not need to state the exact specifics of your illness.

What if my employer doesn't believe my doctor's general statement, can he force me to go to the company doctor?

No. Although the employer is entitled to get a second opinion from another doctor, you don't have to go to a "company doctor" or a doctor employed by your employer. If the employer insists on a second opinion you should tell the second doctor that she may only verify (or deny) your need for leave and she may not disclose your illness or other medical information to your employer. The employer must pay for the second-opinion doctor.

What happens to my medical benefits while I'm on this leave?

Your employer must provide you with the same medical coverage while you are on FMLA or CFRA leave as you had when you were working. For example, if your employer paid all your health insurance premium while you were working he must continue to pay the entire premium while you are on leave; if you paid a percentage of the premium while you were working, you must continue to pay that same percentage while you're on leave.

Does my employer have to keep my job open for me so that I can return to the exact same job?

The law requires that an employee who takes this type of leave be restored to the original position held by the employee when the leave began or to an equivalent position with equivalent pay, benefits and other terms and conditions of employment.

Can my employer refuse to grant me a leave?

If you meet the eligibility criteria for this type of leave, and have not already used up your available leave under these acts, your employer may not deny you the leave.

What do I do if my employer or supervisor won't let me take the leave?

If your employer has a Human Resources Department you should discuss the matter with a HR manager. If not, or if you have other questions contact any of the following:

Can I be fired for requesting this type of leave?

If you and your employer meet the criteria described above you are entitled to this leave by law and you cannot be fired for requesting it.

Do I have to use up all my vacation time or accrued sick leave before I can take this type of leave?

The employer can require you to substitute your accrued paid vacation days and other accrued leave for FMLA or CFRA leave.

Do I have to give my boss notice before I take this leave?

If the need for the leave is foreseeable you must give written notice to the supervisor or person you usually notify when taking vacations or other leave. Give your employer at least 30 days notice of your intent to take this leave and if possible submit the medical certification with your written notice.

If the leave is not foreseeable and must be taken in an emergency situation, then you should contact the employer as soon as possible to give oral notice of the need to take this leave, and you should provide written notice within two working days.

How do I give notice or request the leave, do I have to use a special form?

No, you do not need a special form. Quite often employee handbooks contain sample request forms for FMLA or CFRA leave, so you should check there.

If there is nothing in your employee handbook, or you don't have an employee handbook, you can write the request letter yourself. It should contain the following information:

For More Information

Family Medical Leave Act
or call 1-866-4-USA-DOL

California Family Rights Act
or call (800) 884-1684

The information in this material is for the sole purpose of providing general information and must not be construed as legal advice. It is not legal counsel and, the dissemination of the information does not create an attorney-client relationship. While every effort has been made to ensure that the information given is current, the law does change and information given above may become dated. Consequently, you should seek legal counsel for advice specific to your situation before acting.

The HIV/AIDS Legal Services Alliance (HALSA) is committed to providing high quality legal service, that is HIV/AIDS-related, to members of the HIV/AIDS community living in Los Angeles County. HALSA can be reached at (213) 201-1640.

Michael O'ConnorMichael O'Connor is an attorney who deals with discrimination issues in the HIV/AIDS Legal Services Alliance (HALSA). To reach HALSA, call (213) 201-1640.

Back to the June/July 2002 issue of Positive Living.

This article has been reprinted at The Body with the permission of AIDS Project Los Angeles (APLA).

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