Fact Sheet: The Law and HIV/AIDS

HIV raises many legal-, financial-, and health insurance-related questions for both HIV-positive individuals and their employers. Laws differ in each state. It is important that you consult an attorney in your state or get advice from your local or state AIDS organization.

Health Insurance

If your employer offers health insurance to all employees, you will qualify regardless of your HIV status. However, most health insurance policies have a pre-existing condition exclusion for the first 12 months of coverage.

Pre-Existing Conditions and Portability

If you were HIV-positive before your employment began, you must have "insurance portability" to use your benefits right away for HIV-related treatment. The Health Insurance Portability and Accountability Act (HIPPA) covers this policy.

• You qualify for portability if you had health insurance for at least 12 continuous months before your new employer's policy took effect and if there was no gap in coverage of over 63 days between your old and new policies.

• With portability, your new insurance must cover your pre-existing condition expenses.

COBRA Protection

If you must leave your job for any reason, and if your company has more than 20 employees, the federal law COBRA allows you to keep your health insurance for 18 months after your job ends. This time period is longer if you become disabled.

• If you don't qualify for full portability, keep your COBRA insurance until the new insurance will start paying for pre-existing conditions.

• Some state programs will help cover the cost of your COBRA payments.

Family Medical Leave Act

If you become ill, you are entitled to 12 weeks of protected, unpaid leave under the Family Medical Leave Act (FMLA), provided you have worked for 12 months (and 1,250 hours).

• The Family Medical Leave Act applies to employers with more than 50 employees. FMLA leave need not be taken all at once and can be used as intermittent days once your sick days are exhausted.

Discrimination In Employment -- Americans with Disabilities Act

Under the Americans with Disabilities Act (ADA), an employer cannot discriminate against an HIV-positive employee. Also under this act and applicable state laws, your prospective employer cannot ask if you are HIV positive and cannot disclose your HIV status.

• Your employer can ask only if you are taking medications that affect your ability to perform the job. Taking HIV medications generally does not interfere and therefore need not be disclosed.

• Once a job offer is made, an employer can request a complete physical, drug test or even an HIV test only if it is required of all employees; you cannot be singled out. If you are taking HIV medications, check with your doctor because some medications cause a positive reaction on a urine test for drugs.

• It is illegal under ADA to refuse to hire a person because of his/her HIV status or because of fear of absenteeism, higher insurance costs or the need for accommodations.

Once hired, if the employee requests, an employer must provide "reasonable accommodation" to assist the HIV-positive employee in performing his or her job.

• A reasonable accommodation is any modification of the work schedule that will enable the employee to perform the essential functions of their job, as long as it does not cause undue burden on the employer. An employee may request a reasonable accommodation if medically necessary.

• Accommodations could include time off for doctor visits, later mornings due to medication schedules, shortened work days or even work-at-home days if medically necessary.

AIDS Drug Assistance Program (ADAP)

ADAP is administered by all 50 states; Washington, DC; Puerto Rico; the Virgin Islands; and Guam. It provides medications to HIV-positive individuals who have limited or no coverage from private insurance or Medicaid. For more detailed information on ADAP, go to the ADAP Web site at www.hab.hrsa.gov:80/getting.html.

For more information on all of these federal programs, call the US Department of Health and Human Services Press Office at (202) 690-6343 or visit their Web site at www.dhhs.gov; or visit the Gay Men's Health Crisis Web site at www.gmhc.org.