1 1 Working and Returning to Work After an HIV Positive Diagnosis 2 Presented by: Mitchell Katine 3 4 >> Jacquie: Good afternoon everybody. Welcome to today's 5 Webcast, Working and Returning to Work After an HIV Positive Diagnosis. 6 Our presenter today is Mitchell Katine, a lawyer who has more than 20 years 7 in practice. This Webcast is sponsored today by the National Institute on 8 Disablity and Rehabilitation Research, NIDRR, who funds your host for 9 today's program, the DBTAC Southwest ADA Center. I'm your moderator, 10 Jacquie Brennan, and I am with. 11 >> Mitchell: the ILRU project, Southwest ADA Center. I'll be 12 assisting with today's presentation. 13 Before we start the presentation, the presenter especially wanted me 14 to remind everyone that, of course, in the law -- and especially in this 15 area of the law -- things are always changing. If you're listening to the 16 Webcast today as it's being presented, then the information that you're 17 going to get is our understanding of what the current state of the law is. 18 But if you're listening to this presentation later in its archived form, 19 then things may have changed. Especially in this area of the law and in 20 disability law in general, things are always changing as court decisions 21 shape the law. 22 For those of you who are listening to the Webcast today, to submit 23 your questions, just click on e-mail button on your screen or you can 24 e-mail the questions directly to webcast@ilru.org; and I will voice your 25 e-mailed questions to the presenter. If you have any technical 2 1 difficulties today, please feel free to call us at (713)520-0232. Again, 2 thanks for joining us today; and now I am pleased to be able to turn this 3 over to our presenter today, Mitchell Katine. Good afternoon, Mitch. 4 >> Mitchell: Good afternoon. I'm very happy to be here. I 5 would like to make sure that everyone knows that this is an area that I 6 have been working in since the early '80s -- about '84 or '85. I've 7 certainly seen the area of the law dealing with HIV change. In the early 8 days, there wasn't any area of the law. So I've seen it at some very sad 9 and unfortunate periods where we did not have medications to a place where 10 HIV is often considered to be a chronic disease. I'm happy to say there 11 have been some recent medical journal Articles which indicate that the 12 mortality for newly diagnosed people with HIV is unaffected by the HIV. 13 The title of Working and Returning to Work After a HIV Positive Diagnosis 14 was derived from the fact that people with HIV are no longer passing away 15 or many of them are not. 16 And so it's important for us to understand the employment concept. I 17 am here in Texas -- Houston, Texas. So I will make a couple of comments 18 dealing with Texas law. But many states have actually, probably most 19 states have specific HIV statutes, particularly in the area of 20 confidentiality and testing which need to be addressed -- probably also 21 some working statutes. But many of the working statutes follow the 22 Americans with Disabilities Act which I will be talking about at length. 23 I have put four handouts on the Web site that I will be referring to 24 throughout this program. And I would encourage you to print them out; and 25 as I refer to each one, you can review it. I'm also going to be stopping 3 1 at different points and asking if there are any questions. With such a 2 wide audience, I would imagine there are different levels of understanding 3 of HIV in the law and HIV in employment. So please bear with me if I'm a 4 little too basic for some people. I want to make sure I cover the full 5 range. 6 I have been teaching 'HIV in the Law' at the University of Houston for 7 about ten years now. And prior to that, I taught 'HIV in the Law' at South 8 Texas College of Law. I'm in private practice hear in Houston with a new 9 law firm named Katine and Netchman. I'm also on the State Bar of Texas 10 committee on disability issues. So this is an area, as you see from some 11 of my papers that are on the Web site, that I have taught in, spoken about 12 and certainly represented many HIV positive individuals for many years. 13 I was recently asked to give a speech at a conference dealing with 25 14 years of HIV and AIDS. So that's the first paper I would like to bring to 15 your attention. This kind of gives a chronology of the HIV situation and 16 my own personal life. 17 The first item in there is that I graduated from college in 1982. The 18 significance of that is that I went to college from 1978 to 1982 and never 19 heard of HIV or AIDS. I am a gay person, and I had many gay friends in 20 college. Us not knowing anything about HIV and AIDS, unfortunately, many 21 of my friends from college contracted HIV and AIDS and passed away. So 22 that was just a very dangerous time to be gay. Then my chronology 23 continues and talks about other things relating to the discovery of HIV and 24 AIDS in 1983 -- the time period between '85 and '95 when death was a common 25 outcome, and people saw HIV and AIDS as a terminal condition. 4 1 Unfortunately, I have lost about 89 clients and friends to HIV and AIDS. 2 In '85 there was the first International Conference on AIDS held in 3 Atlanta. In 1986 there was the Bowers/Hardwick decision held by the 4 Supreme Court. In '87 we have the AZT drug. And continuing on, in Texas 5 we had an insurance case dealing with a friend of mine, Mr. McGan, in McGan 6 v. H&H Music case, dealing with HIV insurance caps. 7 In 1991 Texas adopted some laws dealing with confidentiality and 8 testing. 1993, my friend Brian Bradley sued MD Anderson Cancer Center. He 9 was one of the first HIV positive health care workers to have come out 10 working at a health care facility and was subsequently demoted. And then 11 he sued the MD Anderson Cancer Center. The citation is there in 1993 that 12 was affirmed by the fifth circuit, and the Supreme Court did not take that 13 case. And that case basically set the standard in this country for HIV 14 positive health care workers. And in most places, HIV positive health care 15 workers have some restriction on being involved in what we refer to in 16 Texas as invasive procedures -- typically, operating rooms, obstetrics and 17 dental facilities. If you know someone or are HIV positive or have a 18 client that's HIV positive and they're working in one of those three types 19 of facilities, they need to be very careful, and they need to understand 20 what the law is and whether their practice is restricted. 21 Continuing on in 1995, we had employment issues dealing with people 22 being fired from their jobs because they were positive. In 1996 Texas 23 adopted -- excuse me. The Health Insurance Portability and Accountability 24 Act of 1996 was adopted by congress, which finally enabled HIV positive 25 people or anyone with a serious health condition to get credit for their 5 1 insurance coverage in order to change jobs. Prior to the Portability Act, 2 HIV positive individuals and other individuals with serious illnesses were 3 locked into their jobs, were prisoners in their jobs because they could not 4 afford to change jobs due to the preexisting exclusion prohibition of 5 coverage for their condition. 6 Now, whenever anyone leaves a job in which they had insurance, they 7 can request a certificate from their insurance company called a certificate 8 of creditable coverage. And that individual has 63 days to get new 9 insurance and use that certificate of creditable coverage to provide credit 10 against the maximum 12-month preexisting exclusion period so that they 11 don't have to repeat that 12-month exclusion period. 12 Of course, we know that COBRA is a federal law that applies to 13 employers with 20 or more employees who, whenever a qualifying event occurs 14 -- someone is fired from a job for something other than gross misconduct, 15 or quits a job or leaves a job -- they are offered COBRA, and they have to 16 pay for it. And they have to elect it. And COBRA can provide a bridge for 17 insurance benefits until the new insurance kicks in. In Texas, and it's 18 particularly in Houston, we have some organizations that will help HIV 19 positive individuals pay for those COBRA premiums if they are unable to pay 20 for them themselves. And I certainly hope that the organizations like the 21 one here at Legacy Community Health Center -- formerly known as the 22 Montrose Clinic -- that other cities have similar programs. 23 The next item is probably the most significant event in legal history 24 regarding HIV positive individuals, and this is the Supreme Court decision 25 of Bragden v. Abbot, which is still good law today. It's been modified by 6 1 the Supreme Court and some subsequent decisions. Let me talk about this 2 for a moment, since we're on it with our timeline here. This is Bragden v. 3 Abbot, which is found at 524 U.S. 624. That's the legal citation. Decided 4 by the United States Supreme Court which held that HIV was an impairment 5 from the moment of infection, that HIV could constitute a disability under 6 the ADA, and that doctors and dentists could not refuse to treat HIV 7 positive patients due to the doctors' or dentists' unsubstantiated fears. 8 So let's talk about the ADA for a moment, since we're on this Supreme 9 Court decision. The Americans with Disabilities Act has a -- let me read 10 you the general rule. I have the Act right here. The general rule under 11 the Americans with Disabilities Act says as follows: No covered entity 12 shall discriminate against a qualified individual with a disability because 13 of the disability of such individual in regards to job application 14 procedures; the hiring, advancement, or discharge of employees; employee 15 compensation; job training; and other terms, conditions, and privileges of 16 employment. That is the general rule. It's found at 42 U.S. C 12112. 17 So let's take this apart for a moment so that we begin this Webcast 18 with an understanding of the Americans with Disabilities Act general rule. 19 No covered entity. What is a covered entity? A covered entity is a 20 private employer who employees 15 or more employees. If you have a small 21 employer who has less than 15 employees, then the Americans with 22 Disabilities Act doesn't apply. I want to mention also that Texas law 23 basically mirrors the ADA in most of its provisions. So again, probably 24 the state that you're in has a similar labor statute that you might want to 25 look at in addition to federal law. If there's a violation, you can either 7 1 bring a state cause of action or a federal cause of action under the ADA. 2 So continuing with the general rule, no covered entity -- that's 15 or 3 more employees -- shall discriminate against a qualified individual with a 4 disability. What is a qualified individual with a disability? Well first 5 of all, what is a disability? The Americans with Disabilities Act defines 6 a disability in three potential ways. And I am looking for the definition, 7 but I'm going to do this by memory. The first component is a physical or 8 mental impairment that substantially limits one or more major life 9 activities of the individual. The Supreme Court case that I just 10 mentioned, the Bragden v. Abbot, determined that HIV is an impairment from 11 the moment of infection. No matter what else, anybody who has HIV 12 automatically, per se, has an impairment. But that is not the end of the 13 definition of the first prong of disability. Remember, it's a physical or 14 mental impairment that substantially limits one or more major life 15 activities of the individual. So we know that they have an impairment. 16 The real question as to whether an HIV positive person is a person with a 17 disability or not is whether they have a substantial limitation on one or 18 more major life activities, because we know they have an impairment. That 19 is determined on a case-by-case basis. And in the Supreme Court decision 20 of Abbot v. Bragden, the Supreme Court decided that the plaintiff's 21 substantial limitation on her major life activity was on procreation -- 22 having children -- the ability to procreate. Due to her HIV status, in 23 that case it was determined that she had a disability because her 24 procreation was substantially limited. 25 The area and opportunity of major life activities -- major life 8 1 activities are things that most people do or most people are able to do or 2 capable of doing -- walking, seeing, hearing, procreating. And it's really 3 not a finite definition. But it is an individualized decision, and you 4 also have to throw a few more components into that. 5 The first component is in a Supreme Court case involving Sutton -- 6 maybe Jacquie has the full citation. The Sutton decision -- I think it was 7 Sutton v. American Airlines or United Airlines. It's an airline case 8 involving two sisters who had eye problems. The Supreme Court added a 9 component to the determination of a disability by saying that you decide 10 whether a person has a disability after consideration of mitigating 11 measures. Mitigating measures are things such as eyeglasses and other aids 12 to assist people, including medication. Those are considered mitigating 13 measures. 14 Under some EEOC guidelines, the EEOC has said that mitigating measures 15 could both alleviate the substantial limitation on a major life activity 16 such as eyeglasses and also could create substantial limitations on a major 17 life activity. For example, someone with HIV might have very little impact 18 on their major life activities if they were not taking medication. 19 However, by taking medication to save their life and to keep their life 20 going, they could have side effects from the medication which cause them to 21 suffer fatigue, neuropathy, diarrhea -- many other problems -- insomnia -- 22 other things that affect their major life activities of walking, of 23 sleeping, of eating, of interacting with people, sexual activity. All of 24 these things could be affected after they take their medication. 25 >> Jacquie: Mitch, I just want to interrupt you for just a 9 1 second -- 2 >> Mitchell:Sure. 3 >> Jacquie:-- to give you that cite before we got too far out. 4 It's Sutton v. United Airlines, and it's 527 U.S. 471 in 1999. 5 >> Mitchell: Excellent. Thank you. 6 So that's the first prong of disability. Let me give you the other 7 two prongs for a moment. Then I want to talk about being qualified because 8 that's a very important part of pursuing a disability claim is being 9 qualified. 10 The other two components after you get through the first one which is 11 being a person with a disability -- and it's also important to say because 12 this is often misquoted -- is that Bragden v. Abbot did not create a per se 13 disability -- in other words, an automatic disability for people with HIV. 14 It did create an automatic satisfaction of having a physical impairment. 15 But that's not the end of the question of whether you have a disability or 16 not. Sometimes even courts will say, oh, if you have HIV, you 17 automatically have a disability and you're in the protected class and can 18 bring a cause of action. That is not true. And in fact, the Supreme Court 19 in its opinion says we are not determining whether HIV is a per se 20 disability or not at this time. And they haven't since they issued the 21 Abbot v. Bragden decision. 22 The other two prongs of the ADA that could be used is being perceived 23 as having a disability -- in other words, being regarded as having a 24 disability, and also the third one is having a record of a disability. 25 Generally speaking, as attorneys in this area would say, the first prong of 10 1 having a disability is probably the strongest possibility of succeeding in 2 a case. But the other two can be pled and may be successful as well. 3 There are two other components I want to talk about real quickly 4 before I start on being qualified, and that is that the ADA does protect 5 people who associate with a person with a disability. What that means is 6 if I'm a care giver or a partner or a neighbor -- if I associate with 7 someone, like a child with a disability, I cannot be discriminated against 8 because of my association. That would be illegal. The one difference is 9 that under the ADA, people with a disability have a right to reasonable 10 accommodations. But people who associate with someone with a disability do 11 not have a right to reasonable accommodations just because of their 12 association. 13 The other preliminary point I want to make is -- this is actually a 14 pretty big area right now, and that is retaliation. It is against the law, 15 against the ADA, Title 7, to retaliate against someone for exercising their 16 federally protected rights. And we're seeing more and more of this where 17 you have a case that might be lost because -- let's say the person can't 18 prove that they were actually discriminated against because they have a 19 disability, but they are able to prove a retaliation case. That type of 20 case carries its own set of damages that may be easier to prove than an 21 actual discrimination case. 22 So let me now go on to the other part of the general rule, and that is 23 in order to have a violation of the ADA, you must be a qualified individual 24 with a disability. Being qualified means that you're able to perform the 25 essential functions of the job with or without reasonable accommodations. 11 1 This is a concept that many lay people don't really get. I get calls from 2 people. They're in the hospital or they have been home for nine months, and 3 their employer finally fires them. And they call me up saying, I've been 4 fired or I have a disability or I'm at home sick. How can they fire me? 5 I'm really, really sick. And the answer is that really being sick is not a 6 defense to being fired. The law only protects people who are qualified to 7 do their job with or without reasonable accommodations. 8 We actually don't have enough time to go into the Family Medical Leave 9 Act today, but the Family Medical Leave Act is an excellent federal law 10 that applies to companies with 50 or more employees after one year of 11 employment. And that law provides up to 12 weeks of unpaid leave which can 12 be taken intermittently. The reason I want to mention the FMLA just 13 briefly here is because someone who is out on an extended illness due to 14 HIV or some other medical condition, although they maybe subject to being 15 fired for after they use up their vacation or sick time, the FMLA could 16 extend that for up to 12 weeks. After the 12 weeks though, most people who 17 are not qualified to do the essential functions of the job are usually 18 terminated; and it is usually not a violation of the ADA. The person with 19 a disability would have to show that -- they would have to request a 20 reasonable accommodation that being out a little longer -- in other words, 21 just give me one more week, and I'll be able to return. Unless the 22 employer can show an undue hardship which is a defense to providing 23 reasonable accommodations, then the person's firing would legitimate and it 24 wouldn't be a problem. 25 I also want to mention that often people with HIV, after they're fired 12 1 from a job, will try to get disability benefits, either through social 2 security or through private disability means. Jacquie, maybe you can look 3 up that cite -- the Supreme Court cite which set the standard. The Supreme 4 Court in the fifth circuit -- there used to be a presumption that a person 5 was not qualified to perform a job. But that case went to the Supreme 6 Court, and the Supreme Court said, no, we don't want to create a 7 presumption that they're not qualified. 8 We want to give people the opportunity to explain how they could be 9 getting disability benefits through social security while at the same time 10 claiming to be a qualified individual with a disability. The only way that 11 a person can maintain both positions simultaneously is if they claim they 12 can do the essential functions of the job with reasonable accommodations. 13 The reason that's important is that social security disability does not 14 take into account reasonable accommodations in their analysis to determine 15 whether someone has a disability or not. But the ADA does. 16 It's really hard to maintain a case because an employer will usually 17 claim in that situation that the person was not qualified. Here, look at 18 their application for social security or private disability where they go 19 on and on and explain why they're unable to work and why they should get 20 benefits under social security. 21 Let me continue with my time line. We'll go to another handout. 22 Actually, we'll take some questions in just a few minutes, as soon as I 23 finish this handout. 24 In Texas we had a case -- a Texas Supreme Court case called Santa Rosa 25 Health Care v. Garcia. That case upheld the Texas confidentiality statute, 13 1 which anybody interested should look at the Texas Health and Safety Code 2 and see the Texas confidentiality rules. But that's the Supreme Court case 3 that upheld it. 4 The next case I mention is Cruise v. AMR Eagle. And the reason that I 5 put this case here is that, unfortunately, after the Bragden v. Abbot case, 6 we have a series of cases throughout the country that often find that a 7 person who is ill does not fall within the definition of a person with a 8 disability, and that includes people with HIV. 9 I've given you this citation in my handout because I think it's a 10 pretty preposterous case out of Puerto Rico which held that HIV is not a 11 disability because the plaintiff did not introduce evidence in the record 12 of a significant risk of infection of female partners by men with HIV. In 13 other words, since he didn't go the extra step, he kind of presumed that 14 the court knew that an HIV positive man could infect female sex partners. 15 Since he didn't have evidence to support that, the court threw the case out 16 on summary judgment saying that the individual didn't have a disability 17 because there was no evidence of that. 18 So the lesson that comes from that case is that anybody pursuing an 19 HIV disability case really should not take anything for granted. They need 20 expert testimony on every point, and they really have to focus on providing 21 evidence that you fit within the Americans with Disabilities Act that you 22 have a disability. You should never take that for granted. 23 Then in 2001, there was this case under the ADA called Ballad v. 24 Health South, which said that the ADA does not protect HIV confidentiality 25 when voluntarily disclosed. This involved a person who was requesting a 14 1 reasonable accommodation and disclosed his HIV status, and the employer 2 told everybody at work. The ADA does have a confidentiality provision, but 3 it comes under section 42 U.S. C 12112 under Subsection 3 under Employment 4 Entrance Examinations. Now, the court in this case said that the 5 information was voluntarily disclosed. It wasn't requested by the 6 employer. I'm happy to report that there was another case that just came 7 out that did hold. This just came out January 14, 2008. This is the Equal 8 Employment Opportunity Commission v. Ford Motor Credit Company You can find 9 it at 2008 Weslaw 152780. This case says that because the employer really 10 questioned the individual -- in other words he requested some 11 accommodations. He requested disability leave, and the employer said we're 12 not going to give it to you unless you show us what your disability is and 13 what's wrong with you. So the court said because they basically mandated 14 that, that that came within the medical inquiry of the ADA and they said 15 that confidentiality did attach to that. Now this case is out of Nashville 16 -- the Nashville division out of Tennessee. It's an excellent case talking 17 about the ADA, HIV and confidentiality in an employment context in making 18 disclosure. 19 The only other things on my list are the Lawrence v. Texas case. That 20 was a case involving John Lawrence and Tyron Garner here out of Texas. And 21 I was very pleased that I was their local counsel here. And we took that 22 case to the Supreme Court and overturned Bowers v. Hardwick. 23 And the last case involves confidentiality. This New Times v. Doe is 24 a case out of Dallas for a Dallas newspaper that did a story on a HIV 25 housing center. They put a picture of a woman and her child on the front 15 1 page. They gave her name and identified her as being HIV positive without 2 her consent. So she sued the paper. And the court held this really wasn't 3 the intention of the confidentiality laws. Because if it was, she would be 4 entitled to millions and possibly billions of dollars. So we're going to 5 throw that case out on summary judgment. And it really did a lot of damage 6 to our confidentiality statute here in Texas. 7 Well, I have a lot more I'm going to go over. But I've been talking 8 for about 30 minutes. So Jacquie, I would like to see if you have any 9 questions. 10 >> Jacquie: Okay. But before I get to any questions, I want to 11 give the cites of that other case that you mentioned about the different 12 standards for ADA v. SSDI claims. 13 >> Mitchell:Great. 14 >> Jacquie:Cleveland v. Policy Management Systems Corporation, 15 and it's 526 U.S. 795, also in 1999. 16 The questions that we have, Mitch, are all related to employment. Do 17 you want to take those questions now or do you want to talk more about that 18 before we take them? Everyone that I have essentially says sort of the 19 same thing. 20 >> Mitchell: Give me the flavor of them. 21 >> Jacquie: Are you required to disclose your HIV status to an 22 employer and if so under what circumstances? What are the advantages of 23 disclosing versus not disclosing? 24 >> Mitchell: Okay. Let's talk about that. Unlike other 25 protected classes, such as sex and race and national origin and often age, 16 1 HIV is a unique -- first of all, there is no federal law that says HIV 2 discrimination is illegal. I don't know of any federal statute that says 3 that. The only protection to people with HIV in employment is if they can 4 show that they fit within the definition of disability which we've already 5 gone over. The problem with that and the problem with HIV is you usually 6 cannot tell that someone has HIV simply by looking at them. 7 So part of the cause of action in an employment setting is the general 8 rule -- remember the general rule that I started with, and that is no 9 company shall discriminate against an individual with a disability because 10 of the disability of such individual. What that means is that the 11 employee -- in order to succeed in an employment discrimination case -- 12 they must be able to show that the motivation for the adverse employment 13 decision was because of their disability. 14 How does an employer know that someone has a disability if that 15 employee does not make disclosure? That was what the entire Tom Hanks 16 movie was about in Philadelphia. He had lied to his law firm and said that 17 he got hit in the head with a handball, and that's why his carpuses lesion 18 was just a black and blue mark, which was not true. The employer's defense 19 was, we didn't know. We didn't know he had HIV. 20 That was a very good defense for employers. In fact, we've had many 21 cases here in Texas where, again, summary judgment was granted; but the 22 employer said, we didn't know he had HIV. And if we didn't know he had 23 HIV, we could not have discriminated against him because of that 24 disability. 25 So the first point is when should someone with HIV make a disclosure 17 1 of their disability? My general answer to that is, first of all, it's an 2 individualized determination. No lawyer should ever make that decision for 3 his or her client. The reason for that is sometimes bad things happen to 4 the client if they make disclosure. Their work environment gets very bad. 5 The employer tries to get rid of them, and you have to be very careful in 6 the working situation once you make your disclosure. You can do that by 7 keeping a daily log. 8 In some states you're allowed -- such as Texas -- you're allowed to 9 secretly tape record conversations that you're a party to. You need 10 evidence to show how you're treated. But in general, the reason someone 11 would want to make disclosure are the following. Number one, they need a 12 reasonable accommodation. You cannot get a reasonable accommodation until 13 you demonstrate that you're a person with a disability. So as part of your 14 disclosure -- as part of your request for reasonable accommodation -- you 15 must disclose your disability. And I believe you need to be specific and 16 disclose your HIV status as part of your disability. And the way you do 17 that is with a letter, with a meeting, with a support from your doctor that 18 says I am a person with a disability. I have HIV, and these are the 19 reasonable accommodations I need. The employer should then engage in an 20 interactive process with you in order to determine whether or not those 21 reasonable accommodations are appropriate and available, or whether they 22 have an undue hardship defense to providing those. 23 So the first reason is if you need a reasonable accommodation, you 24 should make your disclosure. The second reason that you want to formally 25 make disclosure is if the employer has already figured it out. They are a 18 1 lot of situations where employers who are not stupid see someone who they 2 know is gay. They see them taking their medication or going to the doctor, 3 has lost some weight -- have things that a reasonable person can figure out 4 that this person probably has HIV. Well, if the employer has figured it 5 out and the employee is just afraid to confirm it, the employee is running 6 the risk of the employer coming in the next day, especially if you have an 7 at will employment state and saying today's you're last day. And the 8 employee says wait, wait, I have HIV. Well, it's too late. The employer 9 has already made that decision to let that person go. 10 So those are two reasons you want to make disclosure. One is if you 11 need reasonable accommodations, and the second is if you believe your 12 employer has already figured it out. Some people think there's a third 13 reason, and that's if you anticipate a layoff, you might want to give 14 disclosure so the employer is more cautious about including you in the 15 layoff. But a lot of people believe that a layoff is a perfect time to get 16 rid of someone with HIV because you're doing it with 10, 20, 30 other 17 people. So it's harder for them to show discrimination. 18 I also want to go back one more step and that is talking about the 19 application and the job hiring process. Generally speaking, there is no 20 reason to disclose your HIV status during the job hiring process. In Texas 21 it's illegal to do HIV testing unless the employer can show a bona fide 22 occupational qualification. And I would imagine in all states, they have a 23 restriction on when a lawyer can do HIV testing. 24 Under the ADA, employers who have 15 or more employees -- who the ADA 25 applies to -- are prohibited from asking any medically related questions or 19 1 disability related questions during the job application process until they 2 have made a conditional offer of employment to the individual. And then 3 they can only ask job related questions or perform job related physical 4 exams. Those do not include drug testing. Drug testing is not considered 5 a medical test. So if they want to do drug testing on everybody, they can. 6 Typically, HIV positive people are concerned that their HIV medication will 7 show up as something positive. But I have never seen that as a problem. 8 In other words, testing labs will ask what medications you're on, and they 9 know some may indicate a marijuana indication. But that's usually not a 10 problem, and it's usually not reported to the employer. 11 Again, during the application process, the interview process, I would 12 not recommend that anybody disclose their HIV status. The one caveat of 13 people who are going to be involved with surgery need to review their state 14 laws dealing with HIV positive health care workers. That's the one job 15 area as well as dental and obstetrics that HIV positive people need to be 16 somewhat more careful about than just the other types of jobs. 17 The real difficult area comes when after you're hired, and often after 18 your hired, you're given a health questionnaire to fill out and turn in. 19 Often they ask you, what are your health conditions? What medicines are 20 you on? Do you have HIV? They are often asking those questions to 21 determine the employer's premium and whether the premium needs to be 22 adjusted, not to exclude you from the insurance. But still the problem is 23 after you fill out the questionnaire, what do you do with the 24 questionnaire? Do you give it back to the HR person or the secretary or 25 the boss? 20 1 I have seen on some recent forms -- this has been some recent 2 developments -- where insurance companies under HIPPA and other privacy 3 rules are suggesting that employees return the forms directly to the 4 insurance company. They do not want the employer getting all this personal 5 information from the employees. So I think that under the new 6 confidentiality rules, those things are happening. 7 Jacquie let me stop here and see if you have any questions before I 8 just ramble on. 9 >> Jacquie: The only question that I think you didn't just cover 10 is when it says my employer asked if they could directly contact my doctor 11 to obtain documentation of my HIV status. Do I have to let them do that? 12 >> Mitchell: I think that an employee can obtain the information 13 and give it to the employer. Sometimes I've had employer physicians 14 wanting -- physician-to-physician discussion -- it may depend on the job. 15 There is another fifth circuit case here. This is a situation that comes 16 up over and over again, where you have a person with HIV or actually other 17 medical conditions. 18 And typically, these are people who work in a health care facility who 19 are asked to produce information for infection control procedures. And 20 those doctors or nurses refuse to give the information. Those people have 21 consistently been fired. And the courts have upheld their firing, not 22 because they're a person with a disability, not because they have HIV or 23 something else, but because they refuse to provide information so that the 24 health care facility can take proper infection control procedures to put 25 them in place. Those decisions have so far been upheld. 21 1 With regards to the person who sent in a question, I guess my question 2 being -- if you've already disclosed your HIV status, what would the 3 concern be in having the company verify it or obtain information? In other 4 words, I've seen situations where you had an employee who has a specific 5 job description. You want a doctor to review that job description and 6 certify that the employee can perform it. Certainly, your medical records 7 are somewhat confidential, but I would ask what the employer wants to ask 8 the doctor and try to get that information from the employer and kind of 9 facilitate it with my doctor. 10 >> Jacquie: Sounds good. 11 >> Mitchell: Well, let's go on. I've finished the timeline. I 12 gave a talk for the ADA in 2004. And I just want to review that a little 13 bit regarding if someone is having a problem at work, and they're HIV 14 positive. The first thing that I have in that handout -- and this is 15 entitled HIV/AIDS Law and Practice 2004. That is the analysis of the 16 employment situation and existing benefits is essential from the moment of 17 HIV infection. What I suggest is that anybody who is working and if they 18 have HIV, they should have a consultation with a lawyer who is familiar 19 with HIV and employment issues. These are the things that they should look 20 at. I listed them under Number 1 -- benefit issues, preexisting 21 conditions, analysis of supervisory structures -- all of these things. And 22 this is even before they made disclosure of their HIV. You also need to 23 analyze the person's health status. Is this someone who is going to be 24 able to work for a long time or is this person someone who thinks my health 25 is going down and I need to start getting ready to go on disability which I 22 1 anticipate in a year or two years. Sometimes it's difficult for people 2 with HIV to go on disability because their condition is declining. In 3 other words, if you have a long-term survivor -- they've had HIV for 20 4 years -- they're getting resistant to medication, and they anticipate that, 5 hey, I don't think I'm going to be able to work for another 20 years. I 6 need to start preparing for disability. That person should definitely talk 7 to a lawyer to start seeing how it's going to be because the insurance 8 company's response is going to be, hey, you've worked with HIV for 20 9 years. Why now do you want to stop working and start collecting disability 10 benefits? You better be able to answer those questions or those disability 11 benefits are going to be denied. That's not easy to always answer. 12 The next is work performance issues. HIV disclosure issues -- we 13 already talked about that. Immediate evidentiary preparation. This is for 14 people that are working with HIV. These are some suggestions. Keep a 15 logbook or diary. Written evaluations -- make sure you keep copies of 16 those. Those are very helpful. Tape recording, if it's permitted in your 17 state. Work assignment and/or work performance documentation. You want to 18 be able to show that you're a qualified person with a disability. Don't 19 let the employer fire you because of work performance and just make that 20 up. Credible live witnesses. E-mail and documentary evidence of treatment 21 and job performance. I think that's self explanatory. Disclosure of HIV 22 disability status. We already talked about determination of disability. 23 Doctor and medical support. Ability to perform the essential job 24 functions. 25 The next is a written disclosure. There are -- if you go on the 23 1 Internet -- there are organizations that help people with disabilities. 2 Jacquie may know some of them that have some guidelines as to how you 3 request reasonable accommodations for any disability. And that would be 4 applicable here to someone with HIV as well. It should be in writing. It 5 should be clear. 6 Under my handout, preparation of written notice -- generally not from 7 a lawyer. When you have anything that's prepared by a lawyer or sent by a 8 lawyer, it often becomes very adversarial. That doesn't mean you shouldn't 9 go to a lawyer and help a lawyer prepare it. But the lawyer needs to 10 prepare it so that it's under your signature or your client's signature. 11 It's much better received by the employer than if they get a letter from a 12 lawyer and they say, uh-oh, now it's going to be very adversarial. Have it 13 be hand delivered. 14 Amicable tone. Don't start off in preparing your letter like this is 15 going to be a big fight or that you're going to sue them. Have this be 16 very cooperative and very nice -- nicely written. Reference any needed 17 reasonable accommodations. If someone with HIV or any disability needs a 18 reasonable accommodation, they need to ask for it, particularly in the 19 fifth circuit and the states that are covered by the fifth circuit. I 20 believe most of the law says that someone with a disability cannot expect 21 an employer to just inherently know that someone needs a reasonable 22 accommodation -- that it needs to be requested by the person with a 23 disability. So that same thing should happen here with someone who has 24 HIV. 25 And also, make sure you put in your disclosure that you're able the 24 1 perform the essential functions of the job with or without reasonable 2 accommodations. I would also put in the letter confidentiality, that you 3 want this to be confidential and hope that it will be. Although as we've 4 already talked, sometimes it is, and sometimes it isn't. And sometimes 5 there's nothing you can do about it. 6 The next thing you have to do in making your disclosure is identify 7 the proper person for delivery of it. Anticipate the chain of command 8 disclosures. If you give this to your supervisor, what's he going to do 9 with it? And do you really need to give it to your supervisor as opposed 10 to the owner of the company, HR director, et cetera. As a general rule, 11 the bigger the employer, the better people with HIV and other diseases are 12 treated when you're looking for a job. 13 Select the ultimate decision maker. Who has the power to hire and 14 fire you? That's the person you want to give your notice of disability to 15 and your request for reasonable accommodation, unless there's an 16 established HR department or some other department that it's determined 17 that this is where disability information is supposed to go. 18 Anticipate the reaction in the selection process. In other words, 19 when you give it to them, are you anticipating that they're going to scream 20 and say things you're going to want to capture? Or do you anticipate 21 they're going to take it well? 22 Next item is requesting reasonable accommodation. And there I've 23 given a case from the fifth circuit that talks about the duty to provide 24 reasonable accommodations after a request is made. Some of my tips are 25 request accommodation by both describing the limitation and need and 25 1 requesting the specific accommodation. What do you need in order to do 2 your job? That doesn't mean they necessarily have to provide it. But at 3 least it will give them a suggestion of what they need to do. And the law 4 is they need to meet the need. They don't have to do exactly what you've 5 requested but they have to satisfy the need, unless they can demonstrate 6 the undue hardship defense. 7 Have your request for reasonable accommodation supported by medical 8 professionals. Have a letter attached from your doctor saying that 9 Mitchell needs to come in a little late due to the medication side effects. 10 When he takes them in the morning, he suffers from nausea and diarrhea for 11 an hour. So he needs to come in an hour late. 12 Request a reply. If you're submitting a request for reasonable 13 accommodation, ask that they reply to you. Request the interactive 14 process. Employers are supposed to engage in an interactive process. But 15 this letter may be a piece of evidence if you have to go forward with the 16 claim of discrimination. So it's good to even put that in there. 17 Finally, request confidentiality. Under the actual disclosure 18 process, first suggestion is do not do it alone. Try to have some 19 witnesses with you. Often this is a tool that employers use, where 20 employers when they're discharging someone, they never do it alone. 21 They'll have two or three people in there plus the employee that's being 22 fired. That way, they have two or three witnesses to back up their story. 23 Well if you can bring someone to help support your story or the employee's 24 story of what happened -- kind of like a tape recording -- you have more 25 ears. It provides better evidence. 26 1 Keep a copy of the disclosure that you've given. Assigned receipt is 2 like a lawyer's letter. If you ask someone to sign something, that takes 3 on an adversarial nature. I think if you have evidence that you've given 4 it, that you had a meeting and this is what you gave, you don't have to go 5 as far as to say, please sign here. I think that takes on an adversarial 6 tone. 7 Tape recording is a possibility. I know it is in Texas. I don't know 8 about other states. Log entry immediately after disclosure meeting and 9 thereafter of treatment. In other words, keep a log. Keep a journal of 10 how you're treated. HR and benefit issues may need to be addressed 11 simultaneously. How is this going to affect any benefits that you may 12 have? 13 So the person has made disclosure at work, and now they're starting to 14 have bad treatment from their employer. What should they do? Job 15 performance is essential. Continue to perform your job as best possible. 16 Do not give the employer any legitimate reasons to fire the employee. 17 Because if you do, for example, insubordination, or failure to perform the 18 essential functions of your job, that person is going to be the fired. In 19 other words, refrain from conduct that would support legitimate 20 termination. 21 Document job performance. If it's going to be your word against the 22 employer, you need to document that you're doing your job well. 23 Next item is gather evidence and witness of job performance. Do not 24 expect employer to accurately portray job performance. What I mean by that 25 is many people think that the employer is going to tell the truth, that the 27 1 employer is going to say that the person is a very good employee and that 2 we just don't want someone with HIV working here. I've never seen that 3 happen. And in fact, I currently represent employees who tell me that 4 during their termination process, the employer said to them I would have 5 never hired you if I knew you were HIV positive. The employer is now 6 denying they ever said it. My client is telling me it was said at least 7 two times during the employment. I think the employee was surprised when 8 the employer said they never said it. They expected the employer to admit 9 that they said such an incriminating statement. I've had other employees 10 believe that the employer was going to admit to that discriminatory 11 conduct. It's never happened. 12 The next item is do not quit. A lot of times, people who have HIV and 13 other disabilities are treated very badly, and they get very frustrated and 14 upset with their employment situation; and they just quit just out of 15 frustration. That is not a recommended course of conduct. I would 16 recommend that people stay there as long as they can and do the best job 17 they can under the circumstances. 18 I would also suggest that one of the requirements in a discrimination 19 situation is file a claim of discrimination with the EEOC. You can do that 20 while you're working -- while you're employed at the employer. The EEOC 21 investigation will continue while the person is employed. And if the 22 person is terminated, then the employee can go back to the EEOC and amend 23 their charge of discrimination and include a retaliation charge with the 24 EEOC. And as I said earlier, often, a retaliation charge can be stronger 25 from the underlying discrimination charge that originated the action. 28 1 From a legal perspective, it is better to be fired than to quit. 2 Anticipate employment termination and be prepared to document the event. 3 If you think you're going to be fired today or called into a meeting, 4 again, if you're permitted in the state you're in to tape record that 5 meeting, do it. When I say permitted, in Texas you're permitted to tape 6 record conversations that you're a party to even without the person knowing 7 it. That doesn't mean they have to let you put a tape recorder on the desk 8 in front of them. It means that a person can have a tape recorder in their 9 pocket as long as they're a party to the conversation. I'm not 10 recommending this from a legal perspective or from a lawyer's ethical 11 perspective. I'm not permitted to recommend this thing, but I am just 12 talking about what's legal in Texas. So I'm just reporting on that from a 13 legal perspective. You have to be able to prove what is said to you. 14 Okay. That's the bottom line. How do you prove what is said to you in 15 your termination meeting? One of the best ways is through a tape recording 16 device. 17 The other thing is through e-mails. E-mails are wonderful right now. 18 A lot of people say things in e-mails that they would never say 19 face-to-face. So I believe e-mail evidence which is often retained, even 20 after it's deleted, can often be used to demonstrate discrimination. I've 21 seen a lot of HIV positive employees document their e-mails in order to 22 prove their case. 23 Employment termination. Do not say or do anything that will be used 24 against you. For example, when you're being fired and you feel like 25 cussing or shouting or taking physical action, don't. Don't do anything to 29 1 give them a legitimate reason to fire you. Request written confirmation 2 for the basis of employment termination. Do not sign anything until 3 reviewed by an attorney. Remember, if you settle by signing a release and 4 accepting money, then you have settled your discrimination case. So be 5 very careful what you sign. If you get some severance money, be careful of 6 cashing it until the situation is reviewed by an attorney. 7 Keep the event confidential. The reason I suggest keeping the 8 discriminatory event confidential at first is because you may be able the 9 use the confidentiality as a settlement tool to get a higher settlement. 10 What I mean by that is once you go public -- you go on TV. You go to the 11 newspapers. Now, the employer has to try to defend themselves and prove 12 that they were right. You lose that opportunity to settle and keep the 13 settlement confidential. 14 You can also file for unemployment compensation and check alternative 15 employment to mitigate damages. You are required under federal law that 16 once you're fired to look for other employment and try to obtain other 17 employment. That's called mitigation of damages. 18 You're also required -- by the way, I haven't mentioned this. You are 19 required to file with the EEOC in your area. In Texas you have up to 300 20 days to file because of having a state agency and having a relationship 21 with the state agency. I believe that in other states, you have a shorter 22 period of time of six months to file with the EEOC. So check with your 23 local jurisdiction and check with your EEOC. It's either 6 months or 300 24 days. But also, if you have an unemployment compensation area, this is an 25 excellent place to obtain evidence of discrimination. One reason is 30 1 because many employers do not use lawyers at the unemployment compensation 2 stage. They're often under oath, and those initial statements by employers 3 can be used against the employer to show inconsistent statements. For 4 example, if they fire an HIV positive individual and during the 5 unemployment hearing they say that we were cutting back due to financial 6 reasons; and later it determines that that's a lie, that it was really 7 performance issues and they come up with inconsistent stories. 8 Inconsistent stories can be used as circumstantial evidence of the stories 9 being untrue and a lie, and that the real reason is a discriminatory 10 intent. So if you represent an employer, you want to be sure that your 11 employer tells the truth and is consistent. If you represent an employee 12 you can use consistent statements between the unemployment compensation 13 hearing and the EEOC investigation to show an intent to discriminate. 14 Maintain documentation evidence, et cetera, unemployment compensation. 15 Meet privately with legal counsel. Force employer to explain basis for 16 employment termination. Alleged discrimination as the basis for employment 17 discrimination. In other words, the employee needs to set forth their 18 reason why they think they were fired. Appeal the denial of unemployment 19 compensation and remember often it's sworn evidence in the employment 20 compensation hearing. Jacquie I'm going to stop there for a minute and see 21 if there are any questions before I continue on. 22 >> Jacquie: Yes. We have a few. Good afternoon. My question 23 is what type of reasonable accommodation should I ask for at my current job 24 if I'm constantly interacting with the public which at times causes 25 illnesses that are usually over one week or more? Fortunately, I'm at one 31 1 of the vocational rehabilitation services. So most of the reasonable 2 accommodation procedures are somewhat understood. But at times, I'm a 3 little afraid of requesting that accommodation. What would the drawbacks 4 be? 5 >> Mitchell: Well, Jacquie, I have a question for you. Do you 6 know of a national clearinghouse or national organization that helps people 7 with disabilities come up with potential accommodations? 8 >> Jacquie: Yes, the Job Accommodation Network. 9 >> Mitchell: And how does someone find that Job Accommodation 10 Network? 11 >> Jacquie: I'll get the number. I don't have it right in front 12 of me, but I'll get it and give it to you. 13 >> Mitchell: Okay. The reason I mention that is regardless of 14 what kind of disability you have, we often think within a box. We don't 15 realize all the potential accommodations out there that can be requested. 16 So the person who asked the question about that they interact with the 17 public and due to their compromised immune system, they get sick a lot. 18 Here are some thoughts that come to mind. First of all, it is a reasonable 19 accommodation to request a job transfer to a vacant position. And under 20 EEOC guidelines, the person with a disability should be given preference 21 for that job opening, even if they're not the most qualified for that job 22 position. That's pretty astonishing to some people. In other words, if 23 two people are applying for a vacant position, they're both qualified for 24 the vacant position but the person with the disability is less qualified 25 than the person without a disability, it is a reasonable accommodation to 32 1 give that position to the person who has the disability. So if you're job 2 involves dealing with the public and you feel that there is a vacant 3 position, remember the employer does not have to create a position. They 4 just need to transfer you to a vacant position. That may be a reasonable 5 accommodation. Providing you with a mask or a window -- putting you behind 6 a glass window with a little circle like they have in some clerk offices, 7 may be another type of accommodation. But I would encourage you to discuss 8 all types of accommodations with the organization that Jacquie just 9 mentioned. 10 >> Jacquie: It's called the Job Accommodation Network. It's a 11 free service provided by the office of Disability Employment Policy with 12 the U.S. Department of Labor the voice number is (800)526-7234. And the 13 TTY is (877)781-9403. On the web it's jan.wvu.edu. 14 >> Mitchell: 15 Again, whenever you're requesting accommodations, it's very good to 16 request the opportunity to have an interactive process with the employer 17 where the employer and employee sit down -- and the employee can bring 18 support people with them or even a lawyer with them, somebody who can help 19 explore, how do we solve this problem? How do we provide any 20 accommodations that are needed? And in fact, a lot of the legislative 21 history is that most reasonable accommodations are very cheap. It's just 22 some restructuring or something that can be provided under a $100. And 23 also, counselors and case managers are really good resources to helping 24 people with disabilities request accommodations. 25 Did you have another question for me, Jacquie? 33 1 >> Jacquie: Yes. If HIV is not a per se disability, then how 2 would you determine the degree of limitation on the major life activity of 3 reproduction, especially in this day and age with HIV positive parents able 4 to bear children without the virus? 5 >> Mitchell: It's an individualized assessment. You're right. 6 If reproduction has been determined to be a major life activity, doesn't 7 that apply to everybody? Well, not necessarily. There have been HIV 8 positive people who have had vasectomies who can't bear children, who have 9 tried to use reproduction as a major life activity. The real interesting 10 area is gay men who don't have any children trying to use that. And during 11 deposition -- that's why you have to be careful. These are fact intensive 12 analysis. 13 My partner and I have two children, and they're five years old. So 14 having children for us is something we really wanted to do. But we adopted 15 children. You have to look at the whole situation involving 16 reproduction -- the age of the individual. Are they able to have children? 17 Do they already have children? How many more children did they want to 18 have? 19 So the Supreme Court specifically in this reproduction case -- the 20 Abbot v. Bragden -- said it is not a per se disability. They could have 21 said that, that it was. But they went the other way said it was not a per 22 se disability. In fact, many HIV positive cases are dismissed on summary 23 judgment because the individual with HIV did not demonstrate that they have 24 a substantial limitation on a major life activity. That is a common 25 occurrence in these types of cases. So lawyers and claimants need to be 34 1 very careful when bringing their case to have it presented in the right 2 way. 3 Any other questions? 4 >> Jacquie: Yes. Does the ADA prohibit the employer from 5 purchasing insurance that caps treatments for HIV related treatments? 6 >> Mitchell: Well, that's an interesting question. Would you 7 read the question one more time? 8 >> Jacquie: Sure. Does the ADA prohibit the employer from 9 purchasing insurance that caps treatments for HIV related treatments? 10 >> Mitchell: Okay. Here is how I would analyze that question is 11 that a covered entity -- that is, an employer that has 15 or more 12 employees. If they go out and they purchase insurance or any benefit 13 program that limits the coverage based upon a disability, I think that that 14 employee has a good argument for an employment discrimination charge 15 against the employer. Remember the general rule. The general rule says no 16 covered entity shall discriminate against a qualified individual with a 17 disability because of the disability of such an individual in regards to 18 job application procedures, hiring, advancement, discharge, employment 19 compensation, job training, or other terms, conditions and privileges of 20 employment. 21 I think benefits such as insurance comes within that definition. So 22 although there is a Title 3 case which is called McNeil v. Time Insurance 23 Company out of the fifth circuit. And let me give you the cite to it. 24 That case held under Title 3 of the ADA, the public accommodations 25 provision, that the ADA does not prohibit insurance companies from limiting 35 1 HIV care. But that was a Title 3 case, not a Title 1 case dealing with 2 employment. I think it's important for employers to not discriminate in 3 the giving of benefits. And I think, yes, that they could have a violation 4 of employment discrimination by contracting with an insurance company that 5 has that limitation on it. I'm quickly looking through my book, and I 6 can't find it. Jacquie, is there another question while I'm looking? 7 >> Jacquie: Sure. I confided in a coworker that I have HIV. 8 And I think that he told other people, including my supervisor, because it 9 seems like I have been treated differently since that time. I think my 10 supervisor is suddenly being hypercritical of my work. Can you suggest 11 anything I can do proactively to protect my job? 12 >> Mitchell:Okay. I'll answer that in a second. Let me give you 13 the cite to this insurance case. It's under 205 Fed 3rd 179, fifth 14 circuit, McNeil v. Time Insurance Company. 15 I hope that the person who sent in that question has benefited from 16 the information I've already discussed today about things to do. For 17 example, that individual should think about making formal disclosure. If 18 they think that their coworker has told their supervisor -- in other words, 19 that was one of the two conditions as to possible disclosure. They should 20 think about making a disclosure so they can claim their employer formally 21 knows. Otherwise, the employer can fire that individual and say we didn't 22 know. We didn't believe that person. We just were firing you for some 23 other reason. 24 And also, over the last 30 minutes, I've provided a lot of suggestions 25 and tips about how to start gathering evidence and information to 36 1 demonstrate discrimination. So I hope I've already answered that question. 2 >> Jacquie: It probably came in before you did that. 3 Just one last one. Is it okay to use FMLA to take leave when my HIV 4 condition forces me to not work? 5 >> Mitchell: Absolutely. The FMLA is a wonderful law that helps 6 people, and particularly because you can take it intermittently -- which 7 means your medication on some days makes you sick; and on other days, it 8 doesn't. 9 In fact, I had a client who had to go to Washington DC for a special 10 drug trial. And they had used up all of their vacation time, and the drug 11 trial required them to be in Washington DC for two weeks. So that was 12 perfect for the FMLA to be used. So yes, the FMLA is a wonderful federal 13 law. Just be careful because it is limited to 12 weeks. I think you have 14 to work 1260 hours for it to renew because it is annually -- once you've 15 worked at the employer of 50 or more employers for one year. Remember, the 16 FMLA does not apply to the top ten percent wage earners of the company -- 17 the key employees. But for everyone else, the FMLA should be applicable, 18 and you should have information from your HR Department on that. 19 We're quickly running out of time. Let me just briefly talk about my 20 other two handouts so everybody gets my take on them. One of the handouts 21 is entitled Return to Work, application and interview issues for people 22 that are HIV positive or that have other disabilities. And this is really 23 information that I've taken out of EEOC documents and guidelines. It goes 24 through a question and answer process. If you are looking on Page 4 of 25 this handout, it says main employer asks whether an applicant meets the 37 1 employer's attendance requirements. Yes, attendance is often one of the 2 essential job functions that people must meet. 3 Next page -- Page 5. Main employers ask applicants about their 4 certifications and licenses. Of course, they can. 5 Main employer asks questions about an applicants impairments. Yes, if 6 the particular question is not likely to elicit information about whether 7 the applicant has a disability. This is a little touchy here. It's 8 important to remember that not all impairments are disabilities. An 9 impairment is a disability only if it substantially limits a major life 10 activity. So an employer may ask an applicant with a broken leg how did 11 you break your leg, since a broken leg is normally a temporary condition. 12 And temporary conditions are not disabilities. But such questions such as, 13 do you expect the leg to heal normally or do you break bones easily, would 14 be disability related questions. Certainly, a employer may not ask a broad 15 question about impairments but is likely to elicit information about 16 disability such as, what impairments do you have? I would really recommend 17 that anyone interested in this area go to the EEOC Web site and look at all 18 the material that the EEOC has on it. 19 I have a good friend here in Houston named Joe Bonky who works for the 20 EEOC as the liaison to the community. He provides so much information, 21 such as these type of questions that can help you. Call the EEOC, whether 22 you are an employer or an employee. 23 May an employer ask applicants about their worker's compensation 24 history? No. So just go through this, and you will what is a medical 25 examination, vision test, the post-offer stage. Remember, I talked about 38 1 there being three stages of the application process -- preemployment, 2 conditional offer of employment and then the post-offer stage. The 3 information on confidentiality may be a little out of date due to the 4 recent cases that talk about volunteering information may not be protected 5 under the ADA confidentiality area. 6 The last handout is an article I wrote called, Returning to Work After 7 HIV Disability Leave. This article was based on a State Bar of Texas 8 pamphlet that the Houston Young Lawyers put out, which was also entitled, 9 Returning to Work After HIV Disability Leave. If anybody would like those 10 pamphlets, you can contact the State Bar of Texas and see if they have any 11 available. I believe I have some available. 12 Jacquie, is it okay I'm going to give my e-mail address, if anyone has 13 any questions? 14 >> Jacquie:You bet. 15 >> Mitchell:My e-mail address is mkatine.lawkn.com. 16 So this last article here, Returning to Work After HIV Disability 17 Leaves, talks about everything from transmission and health insurance to 18 disability insurance. People who have been on disability for a long time 19 and their T cells are up and their viro load is down and they're looking to 20 go back to work should really read this entire article. It talks about 21 trial work periods and getting ready to return to work. And also, 22 selecting a new employer. What type of employer would be best for someone 23 with a disability? I would obviously recommend an employer who has 50 or 24 more employers so you're covered by both the FMLA, the ADA and COBRA. Then 25 it also talks about the important question of disclosure of your HIV 39 1 status, which we've talked about. Those are those handouts. 2 Jacquie, I wanted to check in to see if we have any more questions at 3 this time. 4 >> Jacquie: We have one last question that I think your answer 5 is going to have to be limited to Texas. It says, although it's legal to 6 tape conversations that you're a party to, how can a taped conversation be 7 used as evidence? I can see that it would make the employer stop and 8 rethink their position. But since the conversation may be taped privately 9 -- like in your pocket -- is the taped conversation admissible in court? 10 >> Mitchell:I have to limit my answer to Texas. And the answer 11 is yes, it is admissible, as long as the tape is not manipulated or 12 doctored up. You would have to get a tape expert to verify that this tape 13 is the original, that it hasn't been modified, and that it hasn't been 14 altered. And then I think it would be an admissible piece of evidence in 15 the state of Texas. 16 I also want to mention before I forget it and before it gets too late, 17 I will be speaking at the American Bar Association's AIDS conference. It's 18 going to be in Dallas. There's a wonderful program coming up. It's from 19 April 9th to 10th in Dallas, Texas. It's the American Bar 20 Association's AIDS Committee Conference. The title of this year's two-day 21 conference is, From Local Client to Global Work Force. And we'll have 22 speakers from all over the country. If you go to the ABA AIDS coordinating 23 committee Web site, you can see the program. I believe registration just 24 opened up yesterday. I will be there along with John Netchman, my law 25 partner, talking about immigration. It's going to cover a wide range of 40 1 issues, primarily dealing with employment and HIV but also other important 2 issues. So I would invite everyone to come to that conference in April. 3 Well, Jacquie, I think if there are no more questions, that should 4 about cover it for today. 5 >> Jacquie: Okay. Thank you so much, Mitch. This is a really 6 great Webcast. I want to tell everybody to please feel free to share the 7 archives of today's presentation with your colleagues. They'll be 8 available tomorrow at ilru.org. And please don't forget to complete the 9 evaluation on the Webcast page. We are very interested in receiving your 10 feedback. 11 Thanks to the National Institute on Disablity and Rehabilitation 12 Research, NIDRR, who is our sponsor today. The opinions and views 13 expressed here are those of the presenter. No endorsement of the 14 sponsoring agency should be inferred. And finally, this Webcast would not 15 be possible without the efforts of our Webcast team, Rob Dickehuth for his 16 technical expertise and our wonderful captioner today. 17 Please join us next time. Thanks again for today, and have a dazzling 18 day. 19 >> Mitchell: Thanks, Jacquie. 20 >> Jacquie: Bye. 21 >> Mitchell: Bye-bye. 22 23 24 25