HIV and the Family and Medical Leave Act

The Family and Medical Leave Act of 1993 (FMLA) applies to private-sector employers that have 50 or more employees living within 75 miles of the worksite. Eligible employees may take leave for serious health conditions, such as severe HIV-associated illness, or to provide care for an immediate family member with a serious health condition, including HIV.

Eligible employees are entitled to a total of 12 weeks of job-protected, unpaid leave during any 12-month period. To qualify, an employee must have been with an employer for no less than 12 months and have worked at least 1,250 hours.

Qualified reasons for leave under the FMLA include:

• Personal or family illness
• Pregnancy and postnatal care
• Caring for a newly adopted child or a child in foster care
• Family military leave due to a severe illness of a covered service member

The FMLA was signed into law by President Bill Clinton on February 5, 1993, and took effect on August 5, 1993.

Protections Afforded Under the FMLA

The FMLA allows for an eligible employee to continue group health plan coverage while on leave. Upon return from leave, the employee must be restored to the same or an equivalent position with equivalent pay, benefits and working conditions.

These protections, however, are not entirely cast in stone. While individuals designated as "highly compensated employees"—defined as someone who is "among the highest-paid 10% of the employees" within 75 miles of the business—are entitled leave, employers are not required to restore the person to the same or equivalent position if the leave causes "substantial and grievous economic injury" to the operations of the business.

If the employer decides to deny the employee the same or equivalent position, the notification must be provided in writing.

Diagnosis Disclosure May Be Required

In order for individuals with HIV to invoke FMLA protection, the disclosure of their medical information may be required. Employers are not required to provide unpaid medical leave under FMLA if they are not informed of a disability or serious health condition.

If an employee decides to disclose his or her HIV status, the Americans with Disabilities Act of 1990 (ADA) dictates that employers cannot discriminate against a "qualified individual with a disability," including HIV. That includes the firing of someone based on a real or perceived disability, segregation from other employees, or harassment based on a disability.

Furthermore, The Health Insurance Portability and Accountability Act (HIPAA), enacted by Congress in 1996, further ensures that the right of privacy extends to a person's health information. In the event that an employer requires documentation of an illness or disability, the employee's health provider or insurance company must employ safeguards to deliver the information as confidentially as possible and with the minimum amount of information needed.

If confidentiality is breached, the employee can take legal action and file a complaint with the Office of Civil Rights’ (OCR) Health Information Privacy Office. Complaints must be filed within 180 days of the violation and can be filed electronically, by post or by fax to your OCR Regional Manager.

What to Do If Denied Qualified Leave

The U.S. Department of Labor's Wage and Hour Division (WHD) is responsible for enforcing many of the nation's worker protection laws, including the FMLA.

If you have questions or complaints, you can contact WHD at 866-487-9243 or email them online. You will then be directed to the WHD office nearest you for assistance.