As disability attorneys, this is one of the most common questions we are asked by people. While the answer to this question varies from person to person there are some common signs and indicators.
Not surprisingly going out on medical leave is usually a very stressful thing for people. Many people identify closely with their job performance and workplace relationships, and when they become sick or functionally impaired and are no longer capable of producing at the same work level, it is not only difficult to admit declining performance to themselves, but relations with co-workers and supervisors can become strained. Added to this is the confusion about the FMLA process and work accommodations as well as questions about how to medically separate from the job while retaining disability rights.
Surrounding the disability process, there may also be more complex Federal or State employment rights issues, such as wrongful termination, for which a disability applicants may need to seek the aid of an employment law attorney, by and large however we find that most employers that have a Short or Long Term ERISA disability plan or policy will usually demonstrate a basic awareness of the rights of employees who become too sick or impaired to continue working.
Typically the Human Resources or Personnel Department of an employer large enough to sponsor or provide a Group Welfare Benefit Short Term and/or Long Term Disability Plan or Policy understand that such Plans are governed by the terms of the federal Employee Retirement Income Security Rights (ERISA) statute and also that their conduct with a sick or functionally impaired employee must also comport with the provisions of the Family Medical Leave Act (FMLA).
The basic process is that the employee approaches his or her supervisor with a medically-related job performance issue that is sufficiently serious that the supervisor recommends the employee report the condition to the employer’s human resources department or contact who briefs the employee on the FMLA period, some twelve weeks of available medical leave during which the employer is required by federal law to hold the employee’s position open for a return to work in anticipation of a resolution of the medical issue and/or to consider offering the employee special accommodations to facilitate the return to work.
Often however, by the end of the FMLA period the employer is unable or unwilling to make accommodations enabling the employee to work or the employee’s medical or functional impairments are otherwise too severe for the employee to return to work. It is at this point that the most confusion seems to arise: The employer through their human resources contact should at this point inform the employee that the FMLA period protecting the employee’s job has come to an end, the employer has the right to eliminate the employment position, in effect ‘medically separating’ the employee from the position. Whether deliberately or because of confusion about that process it is not unheard of for the employee’s supervisor or even the company’s human resources contact to instead encourage the employee to quit or resign their position. The danger of the employee quitting or resigning when it is not made clear that the job termination is really a medical separation is that the employee’s right to benefits such as Group Life and disability and health insurance coverage may be suddenly terminated before the employee is able to begin the disability process. If you are an employee and your employer asks you to quit or resign your position before you have begun medical leave, you should immediately contact a lawyer for a legal opinion about your rights.
But even where your employer properly follows the FMLA guidelines and directs the employee through a medical separation process, it is often quite disturbing for an employee to hear they are being ‘fired’ and that Health insurance will now only be available to the employee through pricey COBRA premium payments and that if the employee wants to retain work-related Life Insurance policies that they must also now pay the premiums for that coverage.
While I have just described some important aspects of the ERISA disability process, there is an even more basic consideration which is the question of whether your medical or functional impairment is of sufficient severity that you meet and will continue to meet the Short Term Disability and Long Term Disability Plan definitions of ‘total disability’, provisions that are often strictly interpreted by the STD or LTD insurance company or Plan administrator; or in the alternative that you might recover medically to a point where you can permanently return to work. Because once your employer eliminates your position following the end of an FMLA period, they are unlikely to rehire you knowing of your medical and functional limitations.
But on the other hand in those cases where you suspect you will not be able to physically, mentally or functionally sustain work pace and other requirements you should be very careful about being intimidated by your employer into returning to work or returning to work simply because you have a hard time parting with your salary. Some reasons for this are that your employer’s Short Term Disability Plan may have a time-period as long as six months that must pass following a return to work before you are eligible to start another Short Term Disability process. Even more importantly, the success of returning to work under these circumstances requires good faith on the part of the employer, who now knows of your physical and/or psychological short-comings and now has a motivation to find some other reason to fire you ‘for cause’, which if properly done by the employer will serve to terminate your FMLA and ERISA rights, at which point you would then have no job and no disability, nor life insurance, nor company-provided health insurance, and may be unable to find work elsewhere in light of your functional limitations. When faced with these choices we highly recommend you seek the advice of a competent disability attorney who can compare your medical records with your Plan’s disability definition and provide you with an assessment of your chances of meeting and continuing to meet your LTD Plan’s disability definition.
And another great reason for seeking this consult is that just about all LTD disability Plan definitions change after the first twenty-four (24) months you have received benefits, and from the perspective of the employee, not in a good way; specifically, after twenty four months disability is typically defined as an inability to do not only your own job, but all other jobs as well. Moreover, after the twenty fourth month of paying benefits, most LTD Plans specify that they will no longer cover certain mental and physical impairments.
ERISA disability is a very complex area of law and it is vital for a claimant seeking disability benefits to seek a lawyer that has both the legal and the medical knowledge to competently assess all aspects of your case. Relying upon your own knowledge and effort and the good will and cooperation of your employer and the STD/LTD insurance adjuster puts you at risk of losing disability benefits worth many thousands of dollars that are often the only source of income available to a disabled person. Regarding the legal complexities involved in getting and keeping Long Term Disability benefits, an observation by a Federal District Court Judge reviewing an ERISA disability case aptly summed it up:
“Caveat Emptor! This case attests to a promise bought and a promise broken. The vendor of disability insurance now tells us, with some legal support furnished by the United States Supreme Court, that a woman determined disabled by the Social Security Administration because of multiple disabilities which prevent any kind of work cannot be paid on the disability insurance she purchased through her employment. The plan and insurance language did not say, but the world should take notice, that when you buy insurance like this you are purchasing an invitation to a legal ritual in which you will be perfunctorily examined by expert physicians whose objective it is to find you not disabled, you will be determined not disabled by the insurance company principally because of the opinions of the unfriendly experts, and you will be denied benefits.”
See Loucks v. Liberty Life Assurance Co. of Boston, 337 F.Supp.2d 990, 991(W.D. Mich. 2004)
If you live in Arizona and are sorting through these difficult decisions, give our office a ring at 602-648-2035 or visit us at www.disabilityarizona.com for a free phone consult and/or in-person consult, and we will do our best to help you decide whether ending work and pursuing ERISA Short Term Disability and/or Long Term disability makes sense for you.
Having described some of the complexities of ERISA STD and LTD Plans, the reality is that the majority of employees do not work for an employer that offers Short Term or Long Term Disability benefits, which brings us to the equally important question of the right time to apply for Social Security Disability benefits.
Here is the situation: It is becoming more difficult to work with your physical or psychological impairment(s) and your employer has no Short Term Disability Plan, ….can you count on Social Security Disability?
Unlike Short Term and Long Term Disability, a ‘quick and dirty’ way to describe Social Security Disability rules and other practical applications of that program is that you must be able on at least a semi-regular basis to consult physicians who agree in principal and are willing to explain in writing that you are unable to sustain any full-time work or part-time work in which you earn more than $1000.00 gross per month for at least 12 continuous months.
Another inescapable aspect of the Social Security disability process are the long delays and oversights all the way down to the claim level that result from the organizational challenges faced by the various governmental agencies charged with administering the program.
The Social Security disability process usually involves a claimant proceeding through three stages; this is currently the case in Arizona, though some states have one less claim stage. Though on the one hand some small minority of claims win at the first or second stage, on the other hand a relatively large number of claims that arguably meet Social Security’s fairly stringent rules are nevertheless routinely turned down by Social Security Administrative Law Judges at the (third) Hearing level of the process. And the further below 50 years of age that a claimant is, the more difficult it is to successfully obtain benefits as the Social Security rules and the Social Security Administrative Law judges generally do not favor such applicants in light of the effects of of paying benefits to such claimants over a greater number of years is viewed as burdening an already financially troubled program.
Further appeals are permitted from a claim denial by the administrative law judge, but at that point, a fair number of claimants that had attorneys or other representatives learn to their dismay that their attorney or non-attorney advocate is withdrawing from representing them because the appeal process is too complex or otherwise not part of the law firm’s business model and/or that the chances of success are too low. This is particularly true if the claimant was represented by a non-attorney advocate, as such advocates are of course not even licensed to pursue a case in federal district court.
These challenges are just an overview of some of the procedural aspects of this complex claim process, but in light of these realities, anyone considering a social security disability application for anything but the most severe cases should have some means of obtaining at least semi-regular treatment and otherwise sustaining themselves during what will most likely turn out to be a lengthy process.
And even more fundamentally, Social Security applicants, particularly under the age of 50 should be honest with themselves about whether they would be unable to sustain other types of full-time work beyond the types of work in which they are currently trained and experienced. And this is because under the Social Security Disability rules the government does not have to pay you disability benefits if the government can demonstrate even in theory that a claimant can plausibly sustain less strenuous full-time work for which they are not yet trained.
There are even more rules and practical considerations to this process that those that I have briefly here touched on, and many of the same considerations I discussed in the ERISA disability section of this article regarding returning to work once you have taken a medical leave also apply to the social security disability applicant, thus suffice it to say that a significant part of our practice involves sitting down with people and reviewing their medical records and other evidence to get a feel for the intricacies of their situation so as to arrive at a realistic assessment of the best course of action.
If you live in Arizona and are sorting through these difficult decisions, give our office a ring at 602-648-2035 or visit us at www.disabilityarizona.com for a free phone consult and/or in-person consult, and we will do our best to help you decide whether ending work and pursuing Social Security Disability makes sense for you.