Employment rights of people with hiv/aids, viral hepatitis, and/or substance use disorders

1. Employment rights of people with hiv/aids, viral hepatitis, and/or substance use disorders Legal Action Center Presented by Legal Action Center

2. Who is your trainer? Karla Lopez, Esq. Staff Attorney Legal Action Center Legal Action Center

3. 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 Legal Action Center

4. How to get help? • Legal Action Center 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 Legal Action Center

5. 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? Legal Action Center

6. 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 vaseverino@lac.org GET CREDIT FOR YOUR ATTENDANCE! Legal Action Center

7. 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? • NY DOH Letter re: new hepatitis C testing law Legal Action Center

8. 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. Legal Action Center

9. Before we get started…. Legal Action Center Who is in the audience?

10. POLL Do you work with people who are affected by, or are you yourself affected by: 1) HIV or AIDS 2) a substance use disorder 3) viral hepatitis Choose all that apply Legal Action Center

11. POLL If you work with people who are affected by, or are you yourself affected by, viral hepatitis, which type: 1) Hepatitis A 2) Hepatitis B 3) Hepatitis C Choose all that apply Legal Action Center

12. 1. What is Discrimination? Legal Action Center

13. Discrimination is… Treating a person less favorably/differently because of his or her STATUS… … when the law does not permit it. Legal Action Center

14. Discrimination is… • Examples of STATUS protected by law: • Race • Age • Disability • Gender • Religion Legal Action Center

15. 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 Legal Action Center

16. 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) Legal Action Center

17. Discrimination is not… Treating a person less favorably/differently because of his or her CONDUCT. Legal Action Center

18. Discrimination is not… • 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 Legal Action Center

19. Today’s Presentation/Discussion Focuses on discrimination in employment. Legal Action Center

20. 2. What laws prohibit employment discrimination against people with HIV/AIDS, viral hepatitis, and/or substance use disorders? Legal Action Center ~ Federal ~ State ~ City

21. 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 Legal Action Center

22. Laws prohibiting discrimination… 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 Legal Action Center

23. laws prohibiting discrimination… WHO IS PROTECTED BY THESE LAWS? Legal Action Center

24. FEDERAL LAWS Legal Action Center

25. 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. Legal Action Center

26. Who is protected by the federal anti-discrimination laws… 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). Legal Action Center

27. Who is protected by the federal anti-discrimination laws… 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. Legal Action Center

28. Who is protected by the federal anti-discrimination laws… 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. Legal Action Center

29. Who is protected by the federal anti-discrimination laws… 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 Legal Action Center

30. Who is protected by the federal anti-discrimination laws… 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 Legal Action Center

31. Who is protected by the federal anti-discrimination laws… 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 Legal Action Center

32. Who is protected by the federal anti-discrimination laws… 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 recordof having hepatitis. • Example: Employee had acute hepatitis B or C infection, but cleared it 3 years ago. Has record of disability. Legal Action Center

33. Who is protected by the federal anti-discrimination laws… 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”? Legal Action Center

34. Who is protected by the federal anti-discrimination laws… 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). Legal Action Center

35. Who is protected by the federal anti-discrimination laws… 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 Legal Action Center

36. Who is protected by the federal anti-discrimination laws… 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” Legal Action Center

37. Who is protected by the federal anti-discrimination laws… 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” Legal Action Center

38. Who is protected by the federal anti-discrimination laws… 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”? Legal Action Center

39. Who is protected by the federal anti-discrimination laws… 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. Legal Action Center

40. Who is protected by the federal anti-discrimination laws… 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? Legal Action Center

41. Who is protected by the federal anti-discrimination laws… CASE STUDY – ANSWER • 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. Legal Action Center

42. Who is protected by the federal anti-discrimination laws… 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? Legal Action Center

43. Who is protected by the federal anti-discrimination laws… CASE STUDY – ANSWER • NO. • Federal anti-discrimination laws do not protect people who are “currently engaging in the illegal use of drugs.” Legal Action Center

44. Who is protected by the federal anti-discrimination laws… 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 Legal Action Center

45. Who is protected by the federal anti-discrimination laws… 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 Legal Action Center

46. Who is protected by the federal anti-discrimination laws… 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) Legal Action Center

47. Who is protected by the federal anti-discrimination laws… 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? Legal Action Center

48. Who is protected by the federal anti-discrimination laws… 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 Legal Action Center

49. Who is protected by the federal anti-discrimination laws… 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 Legal Action Center

50. Who is protected by the federal anti-discrimination laws… 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? Legal Action Center