Considering earning disability benefits? Follow this roadmap
This article was originally published in the June 1996 edition of Positive Living. This version has been updated by Jacques Chambers, manager of AIDS Project Los Angeles' Benefits Program.
Leaving work, post protease inhibitors, is just as likely to mean short-term disability, or taking a break to adjust to medications, etc., as it is likely to mean permanent disability.
The first step in taking short-term disability is making the decision. It's up to you, not necessarily your doctor, to decide when you need short-term disability. You're going to need your doctor's help, because your doctor has to sign you out on State Disability Insurance (SDI), but the decision really is just yours.
Once you've decided you need time off, check your eligibility for SDI. Almost all employers in California are required to participate in State Disability, or offer a short-term disability program in its place. If you pay into State Disability, you will see an "SDI" deduction on your pay stub.
In order to be eligible, you must have paid into SDI sometime during the past 18 months. SDI pays from $50 a week to a maximum of $336 a week. You get the maximum if the highest quarter of pay-in during the award period roughs out to about $31,700 a year. Any SDI office will confirm financial eligibility over the phone, but SDI usually will not comment on benefit amounts or medical eligibility until they receive an application. A printed schedule of SDI benefits is available from SDI or in the Benefits office at AIDS Project Los Angeles.
Plan with your doctor
Once you know what kind of income you will have, ask your doctor to complete SDI's user-friendly application form. You don't have to be bed-ridden to qualify. SDI accepts almost any HIV diagnosis, even HIV-related depression, as a qualifying disability. Your doctor can sign you out for anywhere from a week up to a full year per disability.
Discuss SDI with your doctor before leaving work. You don't want to cut yourself loose, expecting to collect SDI, only to be turned down by a physician who is a member of the Newt Gingrich Welfare Reform Club.
Once you know your M.D. will help, and you know what SDI will pay, then decide when you want to leave work.
If you have the SDI application completed, mail it in a day or so before you leave your job. You should start receiving checks within 10 to 14 days. The first seven days of disability are not covered. SDI will not pay over sick time, but will pay in addition to vacation or comp time. If you have tons of sick time, ask your company to pay it out as "supplemental disability pay" to augment your SDI.
Preparing to leave
Next, talk to your employer, or call in sick and tell your employer you are going on temporary disability. Tell them you plan to return within three months. If you work for an employer with more than 50 employees and have at least 12 months of service, you will be protected by the federal Family Medical Leave Act (FMLA).
FMLA is a federal law that requires employers to hold your job, or an equivalent job, for periods of disability up to 12 weeks. Your employer must also keep all your benefits in place, and must make the same contributions to your health insurance as when you are working. But you must tell your employer you plan to return within the 12 weeks.
You may be required to tell your employer about your disability, but that information should remain confidential. Your employer may ask for a letter from your doctor. Have your physician write a short statement indicating you suffer from a disability, that the disability will end before 12 weeks have passed, and that you plan to return to work by that time.
When possible, workers are required to give employers up to 30 days' notice and make an effort to schedule the leave so that it will not disrupt business.
FMLA pertains largely to full-time employees, but some part-time workers are included. The law also allows for other arrangements, for instance, taking one day off per week to attend to medical or family emergencies.
Although jobs are protected under FMLA, employers can still lay off disabled employees if their jobs would have been eliminated even if the leave had not been taken.
Some employees leave work on disability without invoking the Family Medical Leave Act. This is often the case if a worker does not want to disclose the nature of the disability.
Decide what to disclose
Should you tell your boss you're HIV-positive?
It depends. If you are looking forward to a series of job promotions, it might not be a good idea. But if your employer is losing patience with the amount of sick time you're taking, it might be smart to "disclose" and get your boss back on your side.
Employers cannot discriminate against people with disabilities. However, they can fire anyone for failure to perform. If you are not performing, and only you know why, you cannot blame your company if they let you go.
If disclosure is an issue, filing for State Disability alone will not blow your cover. SDI checks with your employer, to corroborate your employment and pay status, but does not reveal the reason for your claim, as long as you are not blaming work for your condition.
When you are ready to return to work, notify your employer. You may need a "release to return to work" note from your physician.
Federal protection limits
Now that you have established a disability with your employer, the Americans with Disabilities Act (ADA) provides some protection in the workplace.
For instance, your employer cannot single you out for termination because you are disabled (no laying off five secretaries, as part of a downsizing, and throwing your account exec job in with the pool). The ADA also requires employers to make "reasonable accommodations" for disabled people who want to continue working. It's a vague phrase, but many companies will try by shortening hours, reducing work loads, etc.
If you leave work, short-term, but end up staying out longer, remember that under FMLA your job is no longer protected after 12 weeks. Also, SDI is good for only one year. Long-term disability programs (Social Security, group Long Term Disability policies, private plans) often require much more severe diagnoses than SDI, and a lot more documentation. Social Security, in particular, involves a long application process (on the average, three months in California).
So if you opt for permanent disability, prepare yourself by attending a Social Security Forms Workshop, held at 6:30 p.m. each Tuesday at APLA, 1313 N. Vine St. Apply for Social Security Disability as soon as possible if you are not planning to return to work.
For more information on public benefits and insurance, call (323) 993-1472.
Phil Curtis is a former benefits counselor at AIDS Project Los Angeles and current coordinator of APLA's Work Services Project.