Termination for Having a Disability

The law is pretty clear on whether an employer can terminate an employee because the employee has become disabled – it cannot, assuming some requirements are met. More specifically, the Family and Medical Leave Act (FMLA) provides eligible employees with 12 weeks of annual unpaid leave to deal with their own medical issues or to take care of a member of one’s immediate family. However, not all workplaces are subject to FMLA, and even in those that are, employees must meet certain requirements to be covered by the law. Generally, the FMLA applies only to companies with 50 or more employees located within 75 miles of each other, and workers must have worked at least:

• One year for the employer; and
• 1,250 hours in the preceding year.

The Effect of the FMLA

Although, as stated above, FMLA leave is unpaid, an employee can receive both short-term disability and/or LTD benefits while on FMLA leave. In fact, many employers require their employees to use their allotted FMLA time while on disability. Thus, even though many employees look at disability benefits as an afterthought to their general benefit package, for many disabled employees, FMLA is the most important form of job protection they enjoy.

One’s employer may not terminate an employee if he/she is on FMLA leave, as long as the employee does not use over 12 weeks of their annual FMLA leave allotment. Further, when the employee does return from FMLA leave, his/her employer must employ the employee in his/her former position or one that is substantially similar. However, if an employee does exceed the 12 weeks annual FMLA leave allotment, even by a single day, the employee runs the risk of being terminated for excessive absences. In such a case, if the employee was receiving disability insurance benefits, he/she will still receive benefits according to the terms of the policy.

Additionally, as long as the employee was covered by LTD insurance at the time he/she became unable to work, he/she may file for disability benefits, regardless of whether he/she is still employed. The decisive question is whether the employee was insured on the date of the onset of his/her disability, and not on the date the claim was filed.

Get Help

If you have been approved for LTD benefits, but have been terminated from your employment, and believe that your termination may have been a way for your former employer not to have to pay your benefits, contact an experienced LTD benefits attorney to help you navigate the process. The legal team at Farrell Disability Law has the experience necessary to analyze your situation, and, if it is apparent that you were terminated solely to avoid payment of LTD benefits, will help you develop a strategy to get the benefits you deserve. Contact our Jacksonville office today.

Resource:

www.inc.com/suzanne-lucas/former-home-depot-employee-says-he-was-fired-because-he-needed-surgery.html

Mental Illness and SSDI

While mental illnesses can be officially considered as a disabling condition, eligibility for SSDI benefits under a mental illness can be harder to collect. One reason for this is in the nature of mental illness. Specifically, mental illness symptoms cannot easily be evaluated, and the acuteness of the illness is typically hard to objectively measure. Further, SSA examiners are not psychiatrists, and, consequently, may not be able to grasp the scope of various mental illnesses. Thus, while it is easy for an SSA examiner to determine that a person who has lost a limb cannot drive a vehicle (if his/her occupation is a truck driver, for example), it can be difficult to determine that a person with a mental illness is similarly disabled. Finally, and unfortunately, those claimants suffering from mental illness can carry a stigma that they are lazy and fabricating the illness solely in an effort to receive benefits.

Nevertheless, there are a number of mental illnesses recognized as a disability by the SSA, and to qualify, an individual’s condition must have been diagnosed by a physician. Further, the individual must meet the following qualifications:

• The mental illnesses should prevent an individual from performing any work that he/she had previously been able to perform;
• The mental illness must be of such a severe level that the individual cannot be trained for any other jobs; and
• The mental illness should be expected to last at least a year

Specifically, the SSA has classified mental illnesses under the following categories:

• Organic disorders, such as dementia or delirium.
• Psychotic disorders, such as paranoia and schizophrenia.
• Affective disorders, such as depression and bipolar disorders.
• Learning disorders.
• Anxiety-related disorders, such as phobias, abnormal fears, and panic attacks.
• Somatic Symptom Disorder (causes bodily symptoms for unknown organic causes).
• Personality disorders, such as passive-aggressive or obsessive-compulsive disorders.
• Substance addiction disorders, such as alcoholism and drug addiction.
• Autistic/Pervasive developmental disorders.

Strategies

Since diagnosis of a mental disorder is very subjective, it is best to develop your strategy with the assistance of an experienced disability attorney, who will help the claimant develop his/her claim. Typically, this assistance will encompass keeping a journal or notes that describe a claimant’s mental state at various points in time, as well as providing an indication of how the mental illness has affected the claimant’s daily life and work life. Further, the attorney will work with medical professionals to ensure that the claimant’s medical record is as accurate and all-encompassing as possible.

Seek Legal Advice

If you, or someone you love, are suffering from a mental illness that is negatively affecting your work life, contact the legal team at Farrell Disability Law as soon as possible. Although difficult, we will know how to develop your SSDI claim, so you can obtain benefits which will allow you to focus more on recovery from your illness than how to pay the bills. Contact our Jacksonville office today for an initial consultation.

Resource:

bangordailynews.com/2017/10/31/health/mental-illness-rate-on-the-rise-in-vermont-bucking-national-trend/