E MPLOYMENT RIGHTS OF PEOPLE WITH HIV / AIDS, VIRAL HEPATITIS, AND / OR SUBSTANCE USE DISORDERS Presented by Legal Action Center November 3, 2014 Legal.

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EMPLOYMENT RIGHTS OF PEOPLE WITH HIV/AIDS, VIRAL HEPATITIS, AND/OR SUBSTANCE USE DISORDERS

Presented by Legal Action Center

November 3, 2014

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WHO IS YOUR TRAINER?

Karla Lopez, Esq.Staff Attorney

Legal Action Center

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WHO IS THE LEGAL ACTION CENTER?

Non-profit law & policy organization

Anti-discrimination & privacy work Substance Use Disorders HIV/AIDS Criminal Records

Legal services, litigation, policy, technical assistance

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HOW TO GET HELP?

Legal Action Center’s website has many resources! www.lac.org Free publications, free webinars, online courseware,

and more

Call the Legal Action Center with questions about privacy or discrimination relating to HIV/AIDS, substance use disorders, and/or criminal records – ask for paralegal or attorney-on-call (212) 243-1313

Refer clients to the Legal Action Center if they are facing discrimination or breach of confidentiality

http://www.lac.org/

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TODAY’S TRAINING

Explains employment rights of people with HIV/AIDS, viral hepatitis, and/or substance use disorders

Focus on anti-discrimination laws (NY and federal)

Answers questions such as: What may employers ask about HIV status, viral

hepatitis, and substance use disorders? What are the basic workplace anti-discrimination

protections for people with HIV, hepatitis, or SUD? What legal remedies are available to those who

experience workplace discrimination?

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GET CREDIT FOR YOUR ATTENDANCE!

HAVE YOU REGISTERED?

If you haven’t officially registered with the NYS Department of Health AIDS Institute, please do it now: http://www.hivtrainingny.org/

If you need assistance, contact Vanessa Severino at [email protected]

GET CREDIT FOR YOUR ATTENDANCE!

http://www.hivtrainingny.org/


mailto:[email protected]

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TODAY’S HANDOUTS

This PowerPoint presentation

Brochure: Are You Somebody With…

Helpful Resources to Address Discrimination Against People in Medication-Assisted Treatment

Know Your Rights: Are You In Recovery From Alcohol or Drug Problems?

2014 Opiate Legislation Package: Bill Summaries (NYS)

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TODAY’S HANDOUTS, CONT….

Letter from NYS DOH re: overdose prevention program (9/11/2014)

Letter from NYS DOH re: PReP (7/24/2014)

NY DOH Letter re: new hepatitis C testing law

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ADDITIONAL RESOURCES

EEOC website – go to “Disability Discrimination” http://www.eeoc.gov/laws/types/disability.cfm Contains links to many resources, guidance, etc.

CDC website – www.cdc.gov Viral Hepatitis in Health Care Settings: http://

www.cdc.gov/hepatitis/settings/HealthcareSettings.htm

LAC website – www.lac.org Free publications, webinars, etc.

http://www.eeoc.gov/laws/types/disability.cfm

http://www.eeoc.gov/laws/types/disability.cfm

http://www.cdc.gov/

http://www.cdc.gov/hepatitis/settings/HealthcareSettings.htm



http://www.lac.org/

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BEFORE WE GET STARTED….Who is in the audience?

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POLL

Do you work with people who are affected by:

HIV or AIDS?

Substance use disorders?

Viral hepatitis?

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POLL

If you work with people who are affected by viral hepatitis, which type:

Hepatitis A?

Hepatitis B?

Hepatitis C?

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1. WHAT IS DISCRIMINATION?

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DISCRIMINATION IS…

Treating a person less favorably/differently because of his or her STATUS…

… when the law does not permit it.

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DISCRIMINATION IS…

Examples of STATUS protected by law:

RaceAgeDisabilityGenderReligion

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DISCRIMINATION IS….

Examples of discrimination:

Children’s day camp has a policy of not admitting children who are HIV+

Doctor’s office refuses to treat a man for his broken leg because he is in a methadone maintenance program

Employer fires a woman because it learns she is in recovery from alcoholism

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DISCRIMINATION IS NOT…

An employer does not discriminate when it:

Looks at each person individually, on a case-by-case basis

Does not make generalizations about a person based on his/her status (e.g., based solely on the fact that the person has a disability)

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Treating a person less favorably/differently because of his or her CONDUCT.

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Examples of non-discriminatory action:

An employer fires an employee who caused an accident in the workplace because he was under the influence of alcohol or drugs

An employer fires an employee because she repeatedly no-shows at work because of her alcoholism

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TODAY’S PRESENTATION/DISCUSSION

Focuses on discrimination in employment.

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2. WHAT LAWS PROHIBIT EMPLOYMENT DISCRIMINATION AGAINST PEOPLE WITH HIV/AIDS, VIRAL HEPATITIS, AND/OR SUBSTANCE USE DISORDERS?

~ Federal

~ State

~ City

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LAWS PROHIBITING DISCRIMINATION…

FEDERAL LAWS

Americans with Disabilities Act (“ADA”) Rehabilitation Act of 1973 (“Rehab Act”) Workforce Investment Act Family and Medical Leave Act

STATE & CITY LAWS

New York State Human Rights Law New York City Human Rights Law

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What do these federal, state, and city laws do?

Together, they cover: Private employers with 4 or more employees State and local government agencies, including

licensing agencies Workforce development programs funded by the

federal government Labor organizations Apprentice training programs

What does that mean? None of these entities is allowed to discriminate

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WHO IS PROTECTED BY THESE LAWS?

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FEDERAL LAWS

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WHO IS PROTECTED BY THE FEDERAL ANTI-DISCRIMINATION LAWS…

An individual who-- Has a “disability,” Has a history/record of a disability, or Is regarded as having a disability.

Note: proving “disability” under anti-discrimination laws is NOT the same as proving “disability” for government benefit programs, like SSI.

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What is a “disability”?

1) a physical or mental impairment that substantially limits one or more major life activities;

2) a history or record of such an impairment; or 3) being regarded as having such an impairment.

Courts will make an individualized determination (no automatic disabilities).

NOTE: There is an exception to the third part of the definition (regarded as) – this does not apply to “transitory & minor” impairments (i.e., less than 6 months in duration).

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What is a “disability”? (cont.)

The ADA Amendments Act of 2008 (“ADAAA”) made it easier to prove “disability”

“Disability” should be interpreted expansively and in favor or broad coverage.

Overturned some Supreme Court cases that had interpreted “disability” in an overly-restrictive manner.

Now, the question of whether a person has a disability should not require extensive analysis.

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What is a “disability” – “substantially limits”?

The ADAAA also clarified that the “substantially limits” piece of the definition of “disability” should be interpreted broadly.

“An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be substantially limiting.” (29 C.F.R. §§ 1630.2(j)(1)(ii), (iv)).

Requires individualized assessment. Can consider negative impact of treatment.

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What is a “disability” – “major life activity”?

Examples of major life activities: Walking Talking Seeing Hearing Learning Major bodily functions (e.g., functions of the

immune system; digestive, bowel, bladder, neurological, endocrine, respiratory, circulatory, and reproductive functions)

Caring for oneself Working

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Is being HIV+ or having AIDS a “disability”?

Generally, YES.

EEOC includes HIV/AIDS in examples of impairments for which individualized assessment can be conducted quickly & easily, and which will consistently result in “disability” determination

Doe v. Deer Mountain Day Camp: 10-year old boy with

AIDS has disability under ADA. (682 F.Supp.2d 324)

Remember: perceived status of being HIV+ or having AIDS is also covered by the law Example: Employer assumes you have HIV because your

partner is HIV+ or because you are gay

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Is having viral hepatitis a “disability”?

Yes, if the hepatitis substantially limits a major life activity. Example: If chronic hepatitis B substantially

limits employee’s major life activity of liver function, employee is “disabled.”

Case-by-case determination

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Is having viral hepatitis a “disability”?(cont.)

Remember: perceived status of having hepatitis is also a covered by the law: Example: Employee is HIV+ so employer

assumes he must also have hepatitis C.

So is a record of having hepatitis. Example: Employee had acute hepatitis B or C

infection, but cleared it 3 years ago. Has record of disability.

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CASE STUDY

John is a financial advisor who has chronic hepatitis C. He is being treated with antivirals that cause severe fatigue, depression, and flu-like symptoms. These side effects limit his major life activities of eating and concentrating.

Is John a person with a “disability”?

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CASE STUDY YES. Based on his chronic hepatitis C alone, John most likely

has a “disability” because hepatitis C substantially limits major life activities such as his major bodily functions (e.g., liver function).

In addition, negative side effects of medication may be considered when determining whether John’s hepatitis C substantially limits a major life activity (i.e., whether it is a disability). Here, John’s side effects substantially limit the major life activities of eating, sleeping, and concentrating.

New EEOC Guidance implementing the ADAAA made clear that effects of treatment may be considered in determining whether an individual has a disability. See 29 C.F.R. Sec. 1630.2(j)(4)(ii).

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Is having a substance use disorder a “disability”?

Often, yes.

Depends somewhat on whether the substance use disorder:

involves alcohol vs. illegal drugs is past vs. current

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Is having a substance use disorder a “disability”? - ALCOHOL

Alcoholism is an “impairment,” but it only meets ADA definition of “disability” if it substantially limits (or limited) one or more of that person’s major life activities.

Both past and current substance use disorders involving alcohol are often “disabilities”

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Is having a substance use disorder a “disability”? – ILLEGAL USE

Current substance use disorder involving illegal use of drugs is NOT a “disability” under the law

Past substance use disorder involving illegal use of drugs is a “disability” if it substantially limits (or limited) one or more major life activities

Note: method of recovery is irrelevant to proving “disability”

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CASE STUDY

Gloria suffers from alcoholism but has no problems on the job. Gloria’s boss hears that Gloria is attending AA and fires her, saying, “I don’t want any alcoholics working here.”

Is Gloria a person with a “disability”?

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CASE STUDY – ANSWER

Probably YES – alcoholism is usually a disability regardless of whether it is past or current.

BUT, Gloria still must prove that her alcoholism substantially limits (or limited) one or more of her major life activities.

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CASE STUDY

Jay has been in recovery from cocaine addiction for 5 years and has worked at his current job for the past 3 years. His work performance has been outstanding, but his boss just learned that Jay is in recovery and is thinking of firing him because of his substance use disorder.

Is Jay protected by federal anti-discrimination laws?

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Probably YES.

Jay has a “record of” a substance use disorder (past cocaine addiction).

Jay’s past substance use disorder is a disability if it substantially limited one or more of his major life activities.

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CASE STUDY

Phil uses ecstasy after work, but has no problems on the job. Phil’s boss finds out about his ecstasy use and fires him.

Is Phil protected by federal anti-discrimination laws?

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NO.

Federal anti-discrimination laws do not protect people who are “currently engaging in the illegal use of drugs.”

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What does “illegal use of drugs” mean?

Use of illegal drugs (e.g., heroin, cocaine); or

Unlawful use of prescription drugs, including: No prescription Fraudulent prescription Misuse of prescribed drugs

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When is illegal use of drugs “current”?

There is no definition of “current” in the law itself

Ask: is the use recent enough so that it’s reasonable to assume it’s an ongoing problem?

Courts have found this assumption reasonable when: Used within the past few months Risk of relapse/pattern of relapse support the

conclusion that the problem is ongoing

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What about people in “medication assisted treatment” (MAT), e.g.

methadone treatment?

PROTECTED by federal laws because:

They have a “record of” an impairment that substantially limited a major life activity (e.g. a disability); and/or

They are “regarded as” having an impairment. (do NOT need to show that employee was regarded as

being substantially limited in major life activity by the impairment for “regarded as” situation, as long as impairment is not transitory and minor)

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CASE STUDY

Claire was in a car accident 2 years ago and became dependent on narcotic pain medication. 1 year ago, she entered a methadone program. She has not used any drugs illegally since she began treatment.

Is Claire protected by federal anti-discrimination laws?

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CASE STUDY – ANSWER, part 1….

YES. Because….

Remember: Federal anti-discrimination laws protect people

with a current disability, record of disability, or who are regarded as having an impairment

“Disability” means substantially limits/limited one or more major life activity

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CASE STUDY – ANSWER, cont….

Even though Claire’s dependence on methadone does not substantially limit any major life activity…

Claire has a record of a disability (substance use disorder), which is why she is currently in methadone treatment

Presumably, others perceive Claire as having an impairment (substance use disorder) due to her treatment in a methadone program

Therefore, Claire is protected by federal anti-discrimination law

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CASE STUDY

Mitchell has been in a methadone maintenance program for 6 years. He has a commercial driver’s license, a clean driving record, and no history of any arrests. Mitchell applies to be an interstate truck driver and reveals that he is prescribed methadone. The trucking company turns him down.

Was it legal for the trucking company to reject Mitchell because he is in a methadone program?

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YES. This is legal.

Federal Dept. of Transportation regulations disqualify people from interstate license if they are taking methadone.

Note: Intrastate license requirements are set by state law. New York generally follows the federal guidelines.

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NEW YORK STATE LAW

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WHO IS PROTECTED BY NY STATE LAW…

New York State Human Rights Law –Who is Protected?

Protects individuals with a “disability” Defines disability a little more broadly than

federal law: (1) a physical, mental or medical impairment

resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or

laboratory diagnostic techniques (2) record of/history of such an impairment (3) regarded as having such an impairment

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Is HIV or AIDS a “disability”?

YES. Law protects people known or believed (even

incorrectly) to have HIV infection or related illness

Scardace v. Mid-Island Hosp., 21 A.D.3d 363 (2d Dep’t 2005) (perceived HIV status)

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Is viral hepatitis a “disability”?

Most likely, YES. Virtually all viral hepatitis will be

“demonstrable by medically accepted clinical or laboratory diagnostic techniques”

Some viral hepatitis (e.g., chronic hepatitis B or C) “prevents the exercise of a normal bodily function” (e.g. liver function)

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Is a substance use disorder a “disability”?

YES, but-- NOT IF currently engaging in the illegal use

of drugs (same as federal law) McEniry v. Landy, 84 N.Y.2d 554 (1994) (alcohol

dependency qualifies as a disability)

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NEW YORK CITY LAW

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WHO IS PROTECTED BY NYC LAW?

NYC Human Rights Law –Who is Protected?

Broader than ADA definition

A person with a “disability” “disability” means any physical, medical,

mental, or psychological impairment, or a history/record of such impairment

in New York City

What is a “physical, medical, mental, or psychological impairment”? An impairment of any system of the body (e.g., organs, neurological, musculoskeletal), or a mental or psychological impairment.

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Is HIV/AIDS a “disability”?

YES.

NYC law protects people known or believed (even incorrectly) to have HIV or AIDS

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Is viral hepatitis a “disability”?

Mostly likely, YES.

Under the NYC law’s definition, any viral hepatitis that impairs a system of the body would be a “disability” (e.g., chronic hepatitis B or C impairing organ function)

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Is a substance use disorder a “disability”?

YES, IF-- The person is recovering or has recovered, AND The person is “currently free of [drug/alcohol]

abuse” (includes alcohol!)

No, if-- The person is currently engaging in the illegal use

of drugs (like federal law)

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LAWS PROHIBITING DISCRIMINATION….

WHICH EMPLOYERS MUST FOLLOW THESE LAWS?

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WHO MUST FOLLOW FEDERAL ANTI-DISCRIMINATION LAWS….

Which employers must follow the Americans with Disabilities Act (ADA)?

Private employers with more than 15 employees Covered by “Title I” of the ADA

State and local government agencies Covered by “Title II” of the ADA

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WHO MUST FOLLOW FEDERAL ANTI-DISCRIMINATION LAWS….

Which employers must follow the Rehabilitation Act?

Federal government

Groups/agencies/programs that receive federal funding, either directly or indirectly

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WHO MUST FOLLOW NY STATE LAW?

New York State Human Rights Law –Which Employers Must Follow This Law?

Public & private employers with 4 or more employees

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NYC Human Rights Law –Which Employers Must Follow This Law?

Public & private employers with 4 or more employees operating in NYC

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3. WHAT EMPLOYMENT RIGHTS DO THE ANTI-DISCRIMINATION LAWS GIVE PEOPLE WITH HIV/AIDS, VIRAL HEPATITIS, AND/OR SUBSTANCE USE DISORDERS

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WHAT RIGHTS DO THESE LAWS GIVE?EMPLOYMENT

No employer shall discriminate against a “qualified individual with

a disability”

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What does “qualified” mean?

Meets standards for the job, such as requisite skill, experience, education, etc.

Able to perform the essential job duties with or without “reasonable accommodation”

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What are “essential functions” of the job?

Ask: is the task or function fundamental to the job?

Examples of essential function: The reason the position exists is to perform that

function There are a limited # of employees available to

perform that function The function is highly specialized so that the

person was hired for his/her expertise or ability to perform that function

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What is a “reasonable accommodation”?

Change(s) to work environment or way things are customarily done that enable person with disability to perform his/her job duties

BUT: must not cause employer undue hardship (e.g., significant cost, fundamental change to way company operates, etc.)

AND: individual with disability generally must request the reasonable accommodation

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What is a “reasonable accommodation”? cont….

Employer & employee should engage in “interactive process” where employer may:

Require reasonable documentation of the disability & the need for accommodation

Suggest a different accommodation than the one the employee wants, if it’s effective

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What is a “reasonable accommodation”? cont….

Employer has right to request medical records confirming the disability (but only records confirming disability, not entire medical file), and right to deny reasonable accommodation if records are not provided

Employer must maintain the confidentiality of this medical information

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Examples of reasonable accommodation:

Permitting HIV+ cashier who is easily fatigued to sit on a stool at his register instead of standing

Permitting an employee whose treatment for chronic hepatitis C makes her fatigued to take short breaks from job requiring physical exertion

Allowing leave of absence for treatment of alcoholism – especially if employer allows leave for individuals with other disabilities NOTE: employer has right to monitor recovery (e.g., “fitness

for duty” evaluation; request for documentation of treatment; etc.)

Reallocating/redistributing marginal job duties

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CASE STUDY

Cameron missed a lot of work due to his alcoholism, but did not use more sick days than he had accrued. He requested the “reasonable accommodation” of a leave of absence for inpatient treatment, but his employer refused and fired him instead.

Was it legal for Cameron’s employer to fire him?

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MAYBE.

It is legal to fire Cameron if he did not/could not adequately perform his job, BUT

If the employer grants leaves of absence for other medical conditions, it would be discriminatory not to grant one for Cameron’s medical condition (alcoholism).

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CASE STUDY

Hayley is a stock trader. She is overheard talking about buying and using illegal drugs. When confronted by her employer, Hayley admits she has substance use disorder and asks for a leave of absence to go into treatment as a “reasonable accommodation.” The company refuses and fires her instead.

Was it legal for Hayley’s company to fire her?

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YES. Under the law, Hayley does not have a

“disability” because she is currently engaging in the illegal use of drugs. Therefore, she is not entitled to a reasonable accommodation.

NOTE: sometimes a company’s employee assistance program (EAP) will work with an employee to secure treatment and return to work if treatment is successful, but this is not required by law.

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CASE STUDY

Luke suffers from alcoholism. He works as a parking lot attendant. He regularly drinks alcohol on the job and one day, while drunk, he leaves his booth unattended, and the booth is robbed. When the robbery is discovered, he swears at his boss in front of customers. Luke is fired.

Is this illegal discrimination?

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NO, this is not illegal discrimination.

While Luke may have a “disability” under the law, his actions show that he is unable to perform the essential functions of his job. Therefore he is not a qualified individual and is not protected by the law.

NOTE: employers are not required to excuse misconduct that is forbidden among all employees, even if an employee’s misconduct stems from his disability

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CASE STUDY

Alex, who is HIV+, works as a comptroller for a nonprofit. She has not disclosed her HIV status directly, but a coworker did help her submit claims for reimbursement for HIV-related tests. Alex’s job is very stressful and exacerbates mental & physical problems. She misses work without calling in, and is fired after several days.

Was it legal to fire Alex?

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CASE STUDY – ANSWER YES. An employer may fire an employee who fails

to follow company rules and fails to appear at work without notification, even if the absences are attributable to a disability.

REMEMBER: A person with a disability usually has to request a reasonable accommodation. If Alex had asked for time off as a reasonable accommodation, the employer likely would have been required to provide it to her.

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CASE STUDY

Manny is in a methadone maintenance program under a doctor’s care. He works as a nurse’s aid, and his employer randomly drug tests its employees. During a random drug test, Manny tests positive for methadone, and is fired because of the positive drug test.

Is this illegal discrimination?

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YES, if Manny notified the tester or his employer that he was in treatment and provided documentation that he was taking methadone legally as a patient in a methadone program.

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When can an employer refuse to hire or retain an otherwise qualified employee

with a disability?

Even if a person has a disability and is otherwise qualified for the job, an employer can still refuse to hire him, or can fire him, if he poses a “direct threat” to the health and safety himself or others in the workplace

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When does someone pose a “direct threat”?

“Direct threat” means significant risk of substantial harm

Determination must be based on: Individualized assessment Objective, factual evidence Regarding individual’s present ability to perform

essential job functions Does NOT mean:

Slightly increased risk Speculative or remote risk

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When does someone pose a “direct threat”? cont…

In determining whether someone poses a “direct threat,” should consider 4 factors:

1) duration of the risk

2) nature and severity of the potential harm

3) likelihood that potential harm will occur

4) imminence of the potential harm

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What are employee’s rights if employer determines s/he poses a “direct threat”?

Employer must determine whether the risk can be eliminated, or reduced to an acceptable level, with reasonable accommodation.

If risk cannot be eliminated or reduced to acceptable level, employer is permitted to not hire, or to fire, the employee.

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CASE STUDY

David is HIV+ and works as a chef. His employer learns his HIV status and fires him, saying he could infect the restaurant’s customers.

Is this legal?

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NO.

Objective medical evidence tells us that HIV is not transmitted through food handling, so restaurant customers would not contract HIV from David.

Employer has therefore not conducted the proper assessment of whether David poses a direct threat to customers.

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CASE STUDY

Chris takes Suboxone for treatment of an opiate addiction. He applies for a job that would involve operating dangerous machinery, and tells the employer about his Suboxone prescription. The employer refuses to hire Chris, because he says he’s sure Chris’s Suboxone must make him sleepy, which would be dangerous when operating heavy machinery.

Is this legal?

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NO, this is not legal. The employer’s decision is based on

speculation – he has not consulted any objective, medical evidence (e.g., speaking with Chris’s prescribing physician, or asking Chris himself about side effects of his medication)

There is ample literature stating that buprenorphine and methadone, when used properly pursuant to prescription, do not impair

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What about medical questions and exams?

There are different rules depending on the stage of the employment process (e.g., before employment offer vs. after employment offer)

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What about medical questions/exams before a job offer?

In General: No questions about disability (current or past) No requirement that applicant take HIV test No questions about substance use disorders

(current or past)

Why? So applicant is evaluated on her qualifications, without employer knowing about her disability.

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May an employer give a drug test before a job offer?

YES. Employer may conduct drug tests before hiring and may condition employment on results showing no illegal drug use.

Drug tests are not considered to be a medical exam.

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What if a job applicant is subject to an employer drug test, and s/he takes

methadone or another drug that will show up on the test?

Give lab letter from physician verifying prescription(s) and/or participation in a methadone program

Have tester document medications prescribed

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CASE STUDY

Lily is applying for a job as a medical assistant. The job application asks, “Do you have viral hepatitis?”

Is this question legal?

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NO, it’s not legal because the application is asking Lily about a disability before offering her the job.

What do you think Lily should do when faced with an illegal question?

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CASE STUDY

Lily’s job application also asks, “Do you currently use drugs or drink alcohol?”

Is this question legal?

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CASE STUDY – ANSWER YES. Employers may ask applicants if they

currently use illegal drugs or drink alcohol because use is not the same as having a substance use disorder/disability.

BUT, it is NOT legal for the employer to ask how much or how often Lily uses drugs or alcohol, because those questions could elicit information revealing that Lily has a disability (i.e., substance use disorder)

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CASE STUDY

Lily is offered the medical assistant job, but the company tells her she must pass a medical exam and drug test before she can begin work.

Is it legal for the company to require this?

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YES.

Once an employer offers an applicant a job, the employer may require the applicant to pass a medical exam and/or drug test as long as everyone offered the position is required to take and pass the same exam and/or test.

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What about medical questions/exams after a job offer?

In General: Employer may require exam/test if everyone offered

that position must take the same exam/test Employer may condition hiring on satisfactory result

Employers may directly ask about HIV, substance use disorder, or hepatitis (or any other disability) at this stage as long as ask everyone in position

Remember: Drug tests are not “medical exams.” Employers may give them before or after job offer

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IMPORTANT:

Make sure you read medical questions carefully!

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CASE STUDY

Dylan is HIV+ and has been offered a job as a day care assistant. Dylan’s employer tells him to have his doctor fill out forms, including one that asks whether Dylan has any “communicable diseases.”

How should Dylan’s doctor answer?

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The doctor should answer NO.

HIV is not considered a “communicable disease” under New York State law.

BUT, note: Hepatitis A, B, and C are all considered infectious, communicable diseases under New York law.

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CASE STUDY

What if Dylan’s employer, the day care center, tells him to have his doctor fill out a form that includes the question: “Please list all current diseases” or “Please list all current diagnoses.”

How should Dylan’s doctor answer this question?

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Dylan’s doctor could respond: “None that impair Dylan’s ability to perform his job as a day care assistant.”

But employer might insist on more specifics.

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CASE STUDY

What if Dylan’s doctor cannot avoid disclosing Dylan’s HIV status – either because the form requires it or because the doctor believes it’s relevant for the job?

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Dylan’s doctor may only disclose his HIV+ status with Dylan’s written consent.

The consent form must conform with NY’s HIV confidentiality law (Article 27F) and HIPAA.

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CASE STUDY Jessica is in recovery from opiate addiction and

participates in a methadone maintenance program. She applies for a job in a copper mill and is given a conditional job offer conditioned upon passing a medical examination. Jessica’s medical examination, performed by the employer’s doctor, shows methadone in her system. Jessica shows the doctor her valid prescription and gives him the contact information for her prescribing physician. The doctor reports his findings to the copper mill. The copper mill rescinds Jessica’s job offer, claiming that people taking any kind of opiate cannot safely perform jobs in a mill.

Is it legal for the employer to rescind its offer?

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CASE STUDY – ANSWER NO, it is not legal. The employer is claiming that Jessica poses a

“direct threat” to safety at the mill, BUT it did not: Base its determination on objective medical

evidence (cannot use subjective judgments, assumptions, or stereotypes!)

Evaluate the 4 factors Consider whether it could provide a reasonable

accommodation that would eliminate or sufficiently reduce the risk

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CASE STUDY

Nick has chronic hepatitis C. He applies for a job at an oil refinery and is given a job offer, conditioned on him passing a physical exam. Nick’s physical exam shows liver damage resulting from his hepatitis C. The oil refinery denies Nick the job, because the doctors say that continued exposure to the toxins at the refinery would aggravate his liver damage.

Is this legal?

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YES, if the doctors’ assessment of the risks to Nick’s health are based on objective evidence – what does Nick’s doctor say? What does the medical literature say?

An employer can refuse to hire someone, or fire him, if his employment poses a direct threat to himself (not just to others in workplace).

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What about medical questions/exams after starting work (for current

employees)?

Employers may require medical exams and ask questions about disabilities of current employees ONLY IF the exam/question is “job-related and consistent with business necessity.”

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When might an exam/question be job related and consistent with business

necessity?

When an employer has a reasonable belief, based on objective evidence, that an employee has a medical condition (including substance use disorder) that impairs her ability to perform the job or poses a direct threat to health and safety.

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When would an employer have such a reasonable belief?

Examples:

Employee falls asleep at her desk on more than one occasion

Employee smells of alcohol after lunch every day

Employee is vomiting at work

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CASE STUDY

Winston is an on-call surgeon and is paged to come into the hospital one evening to perform surgery. The nurse notices that Winston’s speech seems impaired and his breath smells of alcohol. The nurse informs an administrator who requires Winston to take a blood alcohol test.

Is it legal to require Winston to take the blood alcohol test?

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CASE STUDY - ANSWER

YES. Winston is a current employee, and the

employer’s decision to require this medical exam (the blood alcohol test) is due to a reasonable belief, based on objective evidence, that Winston’s condition makes him unable to perform the essential functions of his job and poses a direct threat to safety.

In addition, the employer is permitted to discipline Winston for any violations of uniformly-applied conduct rules (such as not drinking alcohol while on-call).

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CASE STUDY

Cece is HIV+. She is a phlebotomist at a blood bank, where her responsibilities include drawing blood. When Cece’s employer learns that she is HIV+, he fires Cece, saying that Cece is a threat to patient safety.

Is this legal?

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CASE STUDY - ANSWER

NO. The current best objective medical evidence

indicates that HIV+ healthcare workers in this type of position do not pose a direct threat to patient safety as long as they follow universal precautions (which all healthcare workers are required to follow, regardless of HIV or other status).

But some courts have found that HIV+ health care workers performing invasive exposure-prone procedures (e.g., surgery) can pose direct threat.

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CASE STUDY, Part 2

Was Cece required to disclose her HIV status to her employer?

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CASE STUDY, Part 2 - ANSWER

No. NYS Dept. of Health and CDC protocols do not require any HIV+ health care workers to disclose their status. Do require use of universal precautions.

What about during her phlebotomy training program? Could the school require Cece to disclose her status to other students when drawing blood? In internship placements? No.

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CASE STUDY, Part 3

What if Cece has chronic hepatitis B or C? Would she have had to disclose her hepatitis status to her employer?

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CASE STUDY, Part 3 - ANSWER

Hepatitis B – No. Same DOH/CDC guidance applies to HIV and hepatitis B.

Hepatitis C – no definitive public health guidance, but same rationale arguably applies.

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Hepatitis and Restaurant/Food Service Employment

Food service employers must follow public health rules, but may not discriminate on basis of disability.

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Hepatitis and Restaurant/Food Service Employment, cont….

ADA says:

If a person has a communicable or infectious disease that is transmissible to others through food handling, and the risk of transmission cannot be eliminated by reasonable accommodation, the employer may refuse to allow that person to perform a job involving food handling.

ADA does not override state, county, or local laws regarding food handling that are designed to protect public health

42 U.S.C. § 12113(e)

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ADA says:

But, even if the employer is justified in not allowing the employee to handle food, employer should attempt to find a reasonable accommodation (e.g., reassigning employee to a non-food handling position)

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New York Law says:

No person with infectious hepatitis may serve, or handle in any manner whatsoever, food intended for sale.

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CASE STUDY

Carrie applies for a job at a restaurant. During her interview, the restaurant manager asks her whether she has any form of viral hepatitis.

Is this legal?

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CASE STUDY - ANSWER NO. Employers may not ask about health and

diseases during the job interview During interview, should be evaluating

whether applicant is qualified for job May only ask about health and diseases after

making conditional job offer

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CASE STUDY

Carrie gets hired as a cook at the restaurant where she interviewed. She later contracts hepatitis A and becomes very ill. She voluntarily tells her employer about her hepatitis and asks for time off to recover. The restaurant fires her.

Is it legal for the restaurant to fire her?

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CASE STUDY - ANSWER

NO, if the hepatitis A rises to the level of a disability (then Carrie is protected by federal and state law).

The ADA and NY law both permit and/or require that those infected with infectious hepatitis, i.e., hepatitis A, be forbidden from handling food for sale, BUT--

Employer should try to provide a reasonable accommodation, such as permitting Carrie to take sick leave as requested, or assigning her to non-food handling duties temporarily.

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CASE STUDY

Carrie’s co-worker in the restaurant, Saul, has chronic hepatitis C. The restaurant owner overhears Saul telling Carrie about his hepatitis C in an effort to make her feel better about her illness. The owner fires Saul because he says that Saul poses a threat to customers’ safety.

Is this legal?

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NO, if Saul’s hepatitis C is a disability.

In determining that Saul poses a direct threat to customers, the restaurant owner did NOT rely on objective medical evidence, which would have shown that hepatitis C is not transmissible through food, so his conduct was illegal.

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QUESTIONS?

Next Up: What remedies are available if someone is discriminated against or his/her rights are violated?

But first: ANY QUESTIONS?

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3. WHAT REMEDIES ARE AVAILABLE IF SOMEONE IS DISCRIMINATED AGAINST/THEIR RIGHTS ARE VIOLATED?

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WHAT REMEDIES ARE AVAILABLE FOR VIOLATION OF ANTI-DISCRIMINATION RIGHTS?

EDUCATE EMPLOYER

Violations of anti-discrimination laws are often due to ignorance

Educating the employer can sometimes result in the changes you want

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REMEDIES FOR VIOLATION OF FEDERAL ANTI-DISCRIMINATION LAWS (e.g., ADA)

Two Remedies:

1) File a complaint with the EEOC, which is the administrative agency that enforces federal anti-discrimination laws in employment context. Do not need a lawyer, though it would probably help

2) File a lawsuit in federal court. Having a lawyer is usually critical to a successful

lawsuit

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REMEDIES FOR VIOLATION OF FEDERAL ANTI-DISCRIMINATION LAWS (e.g., ADA)

What can you get from successful complaint or lawsuit?

Job (hired or reinstated) Changed employer policies Financial compensation

Lost wages Emotional harm Other financial harm Punitive damages (solely to punish employer) Attorney’s fees and court costs

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FEDERAL LAWS, cont….

1) How to file complaint with EEOC

If filing in NY: must file within 300 days from date of discrimination Outside NY: 180 days to file

EEOC will investigate complaint If EEOC finds violation of the law, will try to reach a

voluntary settlement with employer; if cannot reach settlement, agency may file lawsuit

If EEOC finds no violation of law, will send a Notice of Right to Sue, which gives you right to file lawsuit in court

Visit EEOC website: http://www.eeoc.gov/

http://www.eeoc.gov/

http://www.eeoc.gov/

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FEDERAL LAWS, cont….

2) How to file a lawsuit

NOTE: In order to bring a lawsuit alleging discrimination in violation of the ADA, must file a complaint with the EEOC first! EEOC can issue Notice of Right to Sue, allowing you to file lawsuit in court.

Must file lawsuit within 90 days of receiving Notice of Right to Sue from EEOC

Should consult with a lawyer before filing a lawsuit

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REMEDIES AVAILABLE FOR VIOLATION OF NY STATE HUMAN RIGHTS LAW

Two Remedies:

1) File a complaint with the NY State Division of Human Rights Do not need a lawyer, although it is helpful

~OR~ 2) File a lawsuit

Having a lawyer is usually critical to a successful lawsuit

(cannot do both)

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REMEDIES AVAILABLE FOR VIOLATION OF NY STATE HUMAN RIGHTS LAW

What do you get from complaint or lawsuit?

The job (either being hired or reinstated) Changed employer policies Financial compensation for:

Lost wages Emotional harm Other financial harm

From complaint to Division of Human Rights ONLY: civil fines imposed on employer

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STATE LAW, cont….

1) How to file a complaint with the NYS Div. of HR:

Can file a complaint with the NY State Division of Human Rights (1-888-392-3644)

Generally must file within 1 year from date of discrimination

Visit the website for instructions: http://www.dhr.ny.gov/how_to_file_a_complaint.html

The Division will investigate and, if it thinks there may have been discrimination, it will hold a hearing, after which and Order is issued

http://www.dhr.ny.gov/how_to_file_a_complaint.html

http://www.dhr.ny.gov/how_to_file_a_complaint.html

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STATE LAW, cont….

1) How to file a lawsuit:

If dealing with private employer: Must file lawsuit within 3 years from date of discrimination

If dealing with state/local government employer: Must file within 120 days from date of discrimination, and it is a special type of lawsuit known as an “Article 78”

Should consult with lawyer before filing lawsuit

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REMEDIES AVAILABLE FOR VIOLATION OF NY CITY HUMAN RIGHTS LAW

Two Remedies:

1) File a complaint with the NYC Commission on Human Rights Do not need a lawyer, although it is helpful

~OR~ 2) File a lawsuit

Having a lawyer is usually critical to a successful lawsuit

(cannot do both)

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REMEDIES AVAILABLE FOR VIOLATION OF NY CITY HUMAN RIGHTS LAW

What do you get from complaint or lawsuit?

The job (either being hired or reinstated) Changed employer policies Financial compensation for:

Lost wages Emotional harm Other financial harm

From complaint to Human Rights Commission ONLY: civil fines imposed on employer

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CITY LAW, cont….

1) How to file a complaint with NYC Comm’n:

Can file a complaint with the NYC Commission on Human Rights

Must file complaint within 1 year from date of discrimination

Visit website for instructions: http://www.nyc.gov/html/cchr/html/howto.html

Like the State, City will investigate and if it thinks there may have been discrimination, it will hold a hearing and issue Order

http://www.nyc.gov/html/cchr/html/howto.html

http://www.nyc.gov/html/cchr/html/howto.html

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CITY LAW, cont….

1) How to file a lawsuit:(Just like State law)

If dealing with private employer: Must file lawsuit within 3 years from date of discrimination

If dealing with government employer: Must file within 120 days from date of discrimination, and it is a special type of lawsuit known as an “Article 78”

Should consult with lawyer before filing lawsuit

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“Dual Filing”:

New York has automatic “dual filing” with the EEOC—

If you file a complaint with the NYS Division of Human Rights or NYC Human Rights Commission, it will automatically be filed with the EEOC as well, and vice versa

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Additional Notes about Remedies:

You may file a lawsuit alleging violations of federal, state, and city law, all in the same lawsuit.

You may not file complaints with both the NY State Division of Human Rights and the NY City Commission on Human Rights – must choose ONE.

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REMEMBER:

It is VERY important to stay mindful of deadlines for filing complaints and lawsuits!

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QUESTIONS?

Next Up: A brief overview of some insurance issues

But first: ANY QUESTIONS?

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4. A BRIEF OVERVIEW OF SOME INSURANCE ISSUES

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INSURANCE ISSUES

HEALTH INSURANCE

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HEALTH INSURANCE: HIV/AIDS

HIV/AIDS

People in New York State cannot be denied health insurance simply because they have HIV or AIDS

People in New York State cannot be charged a higher health insurance premium simply because they have HIV or AIDS

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HEALTH INSURANCE: SUBSTANCE USE DISORDERS

Mental Health Parity & Addiction Equity Act (“Parity Law”):

Covers most private & public health insurers, including Medicaid Managed Care (but not Medicare)

Insurance plans that offer substance use & mental health benefits must offer them equally (at “parity”) with other medical/surgical benefits

What does this mean? Same co-pays, deductibles, annual & lifetime caps Cannot medically manage mental health/addiction

benefits more stringently than medical/surgical If medical/surgical has out-of-network benefits, mental

health/addiction must too …and more!

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Parity Law, cont…

For more information on parity, check out: LAC webinar:

http://www.lac.org/index.php/lac/149%23Accessing%20Insurance%20Coverage%20for%20Substance%20Use%20&%20Mental%20Health%20Treatment:%20The%20Federal%20Parity%20Laws

SAMHSA’s parity website:http://www.samhsa.gov/health-financing/implementation-mental-health-parity-addiction-equity-act

Coalition for Whole Health: http://www.coalitionforwholehealth.org/

Parity Implementation Coalition: http://parityispersonal.org/

http://www.lac.org/index.php/lac/149#Accessing%20Insurance%20Coverage%20for%20Substance%20Use%20&%20Mental%20Health%20Treatment:%20The%20Federal%20Parity%20Laws





http://www.samhsa.gov/health-financing/implementation-mental-health-parity-addiction-equity-act



http://www.coalitionforwholehealth.org/


http://parityispersonal.org/



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NYS Laws Responding to Opioid Crisis (July 2014)

See your handout, “2014 Opiate Legislation Package: Bill Summaries”

New insurance protections for people seeking treatment for substance use disorders

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Insurance Coverage of Court-Ordered Treatment:

NYS law requires Medicaid Managed Care plans in the state to cover court-ordered treatment (if the plan would otherwise cover that type of treatment)

This law is found at New York Social Services Law section 364-j(4)(r)

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HEALTH INSURANCE: GENERALLY

Plans could refuse to accept, or charge higher premiums to, people/employers with higher health costs

Plans must accept everyone, regardless of health status

Policy can only be cancelled for failure to pay premiums

Before Jan. 1, 2014… Now…

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Insurer could refuse to cover a person with a pre-existing condition (“P.E.C.”), or refuse to cover costs related to P.E.C.

BUT, if maintain insurance, insurer couldn’t deny based on P.E.C.

If do not maintain insurance, insurer could only look back 6 mos.

Insurers cannot deny coverage based on pre-exiting condition

Insurer cannot refuse to pay for treatment for a particular condition simply because person had the condition before joining the plan


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Insurers could charge higher premiums based on health status, health care utilization, and more (called “rating”)

Insurers cannot charge higher premiums based on health status, health care utilization, or gender

Can charge higher premiums based on age, geographic area, and tobacco use


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Employer-based health plans were not required to cover specific types of benefits (e.g., mental health and substance use disorder)

All small employer plans must provide “essential health benefits” (EHB) including mental health & substance use and chronic disease management

Parity Law applies EHB cannot be designed

in way that discriminates based on disability, life expectancy, or age


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Very few anti-discrimination or other protections in individual and small group insurance market

Health insurance “exchanges” set up

Plans sold on exchanges must have adequate networks

Networks must include “essential community providers” (includes Ryan White grantees, federally qualified health centers, etc.)


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For more information on recent and upcoming changes under health care reform:

Federal government’s website on health care reform:http://www.healthcare.gov/

Coalition for Whole Health (focus on mental health and substance use disorders):http://www.coalitionforwholehealth.org/

http://www.healthcare.gov/






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INSURANCE ISSUES

LIFE INSURANCE &

DISABILITY INSURANCE

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LIFE & DISABILITY INSURANCE

Life & Disability Insurance Companies May:

Require applicants to be tested for HIV, but must:

Tell applicants they will be tested

Provide applicants with general information

Have applicant sign a consent form

Cont….

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Life & Disability Insurance Companies May:(cont….)

Ask applicants about illnesses with which they have been diagnosed, including HIV

Deny coverage or charge higher premiums for people with certain illnesses, such as HIV

Require people with certain illnesses, such as HIV, to go through a waiting period before coverage begins

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For more information about insurance issues, call the New York State Department of

Financial Services at

1-800-342-3736

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Q&A

ANY QUESTIONS?

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E MPLOYMENT RIGHTS OF PEOPLE WITH HIV / AIDS, VIRAL HEPATITIS, AND / OR SUBSTANCE USE DISORDERS Presented by Legal Action Center November 3, 2014 Legal.

Documents

legal action center

legal action centers

legal remedies

viral hepatitis

hepatitis b

andor substance use

workplace discrimination

disability discrimination