A LIFELINE FOR THE DISABLED

Although Anthony T. Hincks stated “the only disability that I have, is that I’m human”, that is not true for many people. Although I wish my readers long and healthy lives, many people find themselves at some point in their lives, through no fault of their own, partially or fully medically disabled. I beg you, as well as your family, friends, colleagues and clients, to seek the help of a lawyer when you are applying for long-term (and in some cases short-term) disability benefits, requesting leave under the Family Medical Leave Act, requesting accommodations pursuant to the Americans with Disabilities Act, or applying for Social Security disability benefits.

 

One should not assume that just because they have successfully completed the first level of any of the above application processes, that one is home free. The application process is just the tip of a much larger iceberg that lies below the surface, and, if not handled correctly, can have significant collateral consequences such as undermining a future benefits claim or resulting in the loss of one’s job.

 

The process involved in applying for disability benefits of any sort does not simply involve bringing in a letter from one’s doctor. While this may have sufficed in the “good old days,” the current process is fraught with deadlines, specific requirements, complicated forms, and other landmines that can blow up one’s disability claim. Additionally, if someone is applying for medical leave or disability, it means that they are not functioning at the top of their form and not feeling 100% well. They are often in pain, or suffering from the side effects of medication, which can include fatigue, memory loss, confusion, frustration, depression, and anxiety.  Many people become so upset trying to comply with the requirements of their workplace’s human resources staff, or the staff of a disability carrier, when applying for benefits, that they become frustrated and give-up, or make errors which could impact their ability to receive or continue to receive benefits in the future.

 

Additionally, there is frequently a lack of communication between the employee, employer, insurance carrier, or the third-party intermediary which handles disability, or leave claims for the employer.   The employee may assume that the employer is aware of their medical condition because they have provided their medical information to a third-party carrier or intermediary. Or, often the employer has assigned the medical leave and benefits process to one or more third parties for the purpose of removing themselves from the process in order to preserve the privacy of their employees, or to prevent supervisory staff from becoming biased against a disabled employee. This enforced lack of communication can lead to situations where the employee and the employer are like ships passing in the night. Both parties may mean well and believe they are properly handling the situation, yet they never connect. This can lead to an employee being terminated in spite of a disability because the employer does not have the full understanding of their situation, and an employee feeling they were terminated inappropriately or in violation of a law, despite their employer being fully aware of their situation, or so they thought.

 

Further, doctors do not control employers. This is news to many employees who believe that simply because their employers ask for their doctor’s input, that the employer is legally obligated to listen to the doctor’s recommendations. That is not correct. The law requires a certain level of cooperation from employers, but employers are generally free to control their workforce.  Many employees have lost their jobs because their doctors have asked that they be permitted to be out on leave beyond the time permitted by the law, or have recommended that the employee be permitted to return to work part-time, when that is not an option in their workplace or job, or have stated that the employee should be placed in a different job, when that is not probable, possible, or required of an employer. Employers are generally not required to adhere to the above suggestions. Each workplace has different rules, restrictions, policies and procedures, or even collective-bargaining agreement language to consider. These must be considered alongside local, state, and federal laws.

 

By way of example, we had an unfortunate client who was permitted to take FMLA leave for a mental health condition. During that leave she required back surgery, which kept her out of work for three additional months. The employer regularly asked her for medical updates, and at some point inquired of her doctor when she could return to work. The doctor gave an estimate of a return to work date, but after that date passed, and hearing no further from the doctor or our client, her employer terminated her because of her lack of communication. The client alleged that she did not have to provide a follow-up to her employer because her doctor had not yet cleared her to return to work. The employee thereafter had an option of applying for medical disability retirement, as she was a federal employee, but she did not apply in a timely fashion as she felt she should be permitted to return to her original position. By the time her appeal process ended, she had missed her filing deadline for disability, and the employer chose not to return her to her employment.

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One response to “A LIFELINE FOR THE DISABLED

  1. Reblogged this on judicialsupport and commented:
    Check out Faye Cohen’s post to her blog Toughlawyerlady!

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