Employee Survival Guide® - Fear of Covid-19 At Work: How to Apply For Disability Benefits Through Your Employer

Episode Date: September 18, 2020

In this episode of the Employee Survival Guide we discuss how to apply for disability benefits through your employer if you fear for your personal safety at the workplace due to Covid-19.  Whether you have an anxiety or panic disorder  or you are trying to protect your vulnerability due to Covid-19, Employment Attorney Mark Carey will give you a short guide about how to apply for your employer's Short Term Disability benefits and Long Term Disability benefits under a federal statute called ERISA (Employee Retirement Income Security Act). Mark will also discuss the very important overlap with the Family Medical Leave Act, the Americans With Disabilities Act and state antidiscrimination laws. He will show you how protected you actually are against your employer unfairly terminating you for taking a much needed disability leave of absence due to Covid-19.   Listen to the Employee Survival Guide podcast latest episode here  https://capclaw.com/employee-survival-guide-podcast/If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn.  We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts.For more information, please contact Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.The content of this website is provided for information purposes only and does not constitute legal advice nor create an attorney-client relationship.  Carey & Associates, P.C. makes no warranty, express or implied, regarding the accuracy of the information contained on this website or to any website to which it is linked to.If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn. We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts. Leaving a review will inform other listeners you found the content on this podcast is important in the area of employment law in the United States. For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.

Welcome to another edition of the Employee Survival Guide, where you can learn everything your employer does not want you to know about and more. Now, here's attorney Mark Carey. Today's podcast, we're going to talk about short-term and long-term disability benefits in the event that you need to leave the office because of the pandemic and your fear of COVID, office because of the pandemic and your fear of COVID, or you might have a vulnerability such as a disability, cancer, MS, and you need to obtain benefits because you cannot work. And so I'm going to give a short podcast. It'll hit all the high points very quickly, and you'll have the information ready to protect yourself, to go to your employer, and to apply for benefits. The federal law called ERISA, the Employee Retirement Income Security Act,

provides for protections and plan benefits in the event that you become disabled. And all you need to do is the following things to apply for benefits in the event that you are having problems working during this COVID age or in general. And the first thing you need to do is to locate your employment manual or HR portal and determine if your employer provides for short-term disability benefits. And if they do provide form, you can apply by just simply asking your employer through the HR department to make an application for short-term disability benefits. And you'll need to provide the medical documentation from your treating providers, whether it's an anxiety or panic disorder because of fear of COVID or fear of getting sick because of COVID, because of your disability you already have, a pre-existing condition, you'll need to document your information with your employer in a confidential sort of, you know, confidential manner. But the information is going to be sent to your insurance company or the insurance company that handles the short-term disability benefits. And they'll review that information to determine whether you are disabled temporarily in your job and unable to do your own occupation or the occupation of your job.

And it happens pretty quickly. It also coincides with the Feminine Medical Leave Act, and it also coincides with the Americans with Disabilities Act and state disability law. Americans with Disabilities Act, and state disability law. So when you apply for disability benefits through the employer and the short-term disability plan, you're covered by several state and federal statutes that protect your job. That's critical because you may want to return to that job if you become well and things clear up and you want to earn more income. And I say that because more income, short-term disability benefits generally provides for 60% of your salary, and sometimes it can provide up to 100% of your salary. Typically, these are sponsored benefits by the employer, administered by an

insurance company, and every company is different. The other differences between the three statutes I referenced is the FMLA, if you apply for it, it will run concurrently. Typically, it's 12 weeks for the federal statute. Each state has their separate length of time. And as we now know, some states and under the CARES Act provide for paid leave of absence. New York is an example of a paid state law on Feminine Medical Leave Act. You only get paid once, so you can't double dip and collect. So typically, you'll get your short-term disability benefits because they are larger in scope than any other benefits you can

get. ADA does not provide for paid leave, unfortunately. And once you document your case to the employer and to the insurance company, they'll review it. Generally, under ERISA, they have 45 to 90 days to review your application. They can deny it. And if they do deny it, you have 180 days or shorter, depending upon the plan, to file an appeal. In the appeal, you want to basically contest what they're saying to you. In the denial of claim, they have to basically contest what they're saying to you in the denial of claim. They have to tell you what it is, what happened, and why they're denying it. They just can't say deny. And you would then provide more medical information and try to contest it.

Eventually, if they deny it, you have the opportunity to go to court, which is not the most advantageous scenario to go, but you do have the ability to file a federal lawsuit to contest the employer or the plan's denial of benefits. Also, you have the ability to challenge the employer because any denial of benefits could be seen as a retaliatory act or a denial of reasonable accommodation to you. So the employer acts very diligently with you and won't want to trample your rights, so to speak. So there is a fair amount of protection for your job when you do go out on disability. And if you need to do it, I highly encourage it. The next part of disability benefits area is the issue of when your disability or short-term disability benefits cease, and you need to go into long-term disability. Yes, that actually exists. Some employers don't have it because it's too expensive, but the majority

of the large employers do have it. And you would ask or apply for your benefit for the long-term disability benefits while you're still on short-term disability benefits. I typically ask the client to apply for both at the same time in the beginning. That way, I get the ball rolling. And long-term disability benefits act in terms of the review the same way they do for short-term disability benefits. You're just basically going to duplicate your process. You're going to probably provide more medical information. Just because the short-term disability benefits were awarded does not mean that the same carrier, the short-term disability benefits were awarded does not mean that the same carrier, I'll choose an example like the Unum or the Hartford, they don't have to accept the decision that they made below in the short-term disability case to the long-term. It's a separate new case, but let's

be smart about it. We use the same information again twice. So I just want to make that clear to you. And the same process works again. If they deny it, you have the ability to appeal internally and eventually to file a lawsuit if you need to. So that's the structure of it. And I want to make very clear that the ADA and the Feminine Medical Leave Act and the ERISA all overlap at the same time. I'll cut it to the basics. Don't worry about it. I'll cut it to the basics. Don't worry about it. You're protected even though you don't know you're protected because that confluence of like three or four different statutes, state and federal, it's enough to bother the HR department and their counsel to really stand down a little bit, wait to see what happens, and not act too aggressively with you, even if you don't have an attorney, an employment attorney. If you find yourself in a bind and you need to really get those benefits, and even if they're denied, I, as an Arisa attorney, I've seen these cases multiple times over the years. And we will take a case that started out as an individual employee, and then they hired us after a denial. And we're

able to clean it up. Typically, what happens to the denials is that the insurance companies who are in the business of not paying claims will cherry pick the file and deny it, and especially if you don't have an attorney. I know that sounds unfair. It is. And that's why you've got to get an employment attorney who does ERISA work like myself.

So that is the process in a nutshell. And I hope that helps you out when you're thinking about applying for benefits. And obviously there's a lot more to this. I just want to make a very short podcast on this topic. And if you need more information, please contact us at Cary Associates, a PC. We're on the web at capclaw.com, and I'll talk to you soon. Thanks.