Sunday, May 13, 2012

Are HIV Positive People Disabled People?

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Are HIV Positive People Disabled People?
Those Living with HIV are Considered Disabled People

A common question I get each day is from HIV positive people asking how to access disability benefits. That made me think; is HIV a disability? If so, what are your rights in the workplace? There are people who would say absolutely not. There are people living with HIV that would say yes, HIV is a disability. Thanks to an occurrence in 1994, we know the legal answer to the question; is HIV a disability?

It All Started With A Trip To The Dentist
In September of 1994, Sidney Abbott visited the office of dentist Randon Bragdon. This routine visit would spark a controversy that would eventually involve the United States Supreme Court. On that day, Dr. Bragdon refused to fill Ms. Abbott's simple cavity because she admitted to being HIV positive. Ms. Abbott felt she was being discriminated against because of her HIV.

A Disturbing Trend
At the time, Ms. Abbott's experience was just another in a growing number of such discrimination by doctors and dentists refusing to treat HIV positive people. AIDS activists and medical professionals feared that if this mentality were left to spread among a growing number healthcare professionals, the quality and availability of HIV care would decline, placing HIV infected people at a definite disadvantage and frankly in grave danger.

The Debate - Was Ms. Abbott's HIV a Disability?
How did Dr. Bragdon justify his decision not to treat Ms. Abbott? The dentist argued that since Ms. Abbott showed no physical signs or symptoms of HIV or AIDS, she was not disabled and therefore was not protected by Federal law. The law Dr. Bragdon was referring to was The Americans with Disabilities Act (ADA), a law that forbids discrimination against people who are disabled.

Ms. Abbott countered that her HIV impacted her ability to reproduced, rendering her disabled. She felt that because she was disabled, Dr. Bragdon's refusal to treat her was in direct violation of the ADA. The Supreme Court agreed. In June of 1998, the High Court stated that people infected with HIV were entitled to protection under the Americans with Disabilities Act, regardless of their symptoms or lack of symptoms. Ironically, if that same arguement was made today, Ms. Abbott may have a hard time proving her case since we know that HIV does not prevent an HIV positive women from pregnancy and having children. This would mean that Ms. Abbott's contention that HIV prevented her from reproducing and therefore she was disabled, had no medical basis.

How Does This Help You?
The ADA says the HIV positive person has rights and protections from discrimination based on HIV disease. That person is also entitled to workplace accomodations that allow them to perform their jobs efficiently, while protecting the health of the employee. For instance, if an HIV positive person has peripheral neuropathy in the feet, the ADA says the employer must provide the employee with a chair that will allow him or her to sit down while working to ease the discomfort of the neuropathy. If their job can't be performed while sitting, the employer must make every effort to place that employee in a job they can do while sitting.

The rights and provisions provided by the ADA are protected by Federal law and confirmed and backed by The United States Supreme Court. Because people both symptomatic and asymptomatic HIV infected people are protected by the ADA, employers must make reasonable accommodations for the infected person. For instance, under the ADA, employers must allow time away from work to seek medical care such as doctors' visits, trips to the pharmacy to pick up medication, and time to take that medication in a private setting. In addition, employers must make reasonable accommodations regarding schedule modification, reassignment to vacant positions that are better suited to the person's limitations, and must provide equipment that will allow the person to better perform his or her job.

What Should I Do if I Feel I'm Being Discriminated Against?
If you feel you are being discriminated against or you feel that you may need the provisions of the ADA to perform your job, consult your doctor. Take an honest, objective look at your general state of health, stamina, mental health, and ability to perform your job. If you feel accommodations such as those provided by the ADA are needed, take your request with supporting medical information to support your claim to your local ADA office. They can guide you through the process step-by-step and show you how to get the workplace accomodations you are entitled to. If after filing your ADA request in good faith and your employer does not make reasonable efforts to accommodate you, consult legal services to see if you do truly have a case. The key is to be realistic in what you are capable of and what you expect from your company.

Important Information!
Keep in mind that if you file an ADA request it may mean that at some point in the process you will be required to allow your employer access to some parts of your medical record, including those associated withyour HIV care. Simply put, in order to get the accomodations you feel you need in order to work, making your HIV+ status known to your employer may be necessary.

Important Instructions!
Never sign any document permitting your employer access to your medical records without first speaking with your doctor and attorney. If you can't afford an attorney, check with your local HIV/AIDS agency for the names of lawyers in your area that specialize in HIV legal matters (many of which are free of charge to those living with HIV).

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