2006 LegalHealth

Work and Disability Issues: A User's Guide

April 29, 2012

2010 LegalHealth 2

LegalHealth

LegalHealth was founded in 2001 with a mission of providing free legal services to individuals with serious and chronic illness in the health care setting to ensure that their basic needs for food, shelter, medical care, financial stability and safety are met. LegalHealth is a division of the New York Legal Assistance Group, a nonprofit law office.

LegalHealth is funded through private foundations and its hospital partners. We are on site in 17 NYC area hospitals and health clinics and also work with community based organizations. In 2009 we served more than 3,800 clients, 600 of whom were people with cancer, and trained 1,500 health care professionals.

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Objectives

Workplace rights of an individual with breast cancer

• Disclosure laws and legal pros and cons

• Securing reasonable accommodations

• Family Medical Leave Act

• Disability options for people who can no longer work

• Access To Employee Benefits

• Continuation of Benefits

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Applicable Laws

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Americans With Disabilities Act

• Applies to all employers with 15 or more employees

• Employer cannot discriminate against an employee or prospective employee because of a disability or perceived disability

• Employer must provide reasonable accommodation so that an employee can perform the essential functions of the job as long as the accommodation does not impose an undue hardship

• A person has a disability if he/she has a physical or mental impairment that substantially limits one or more major life activities

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Major Life Activities Under ADAAA

• MLAs include “major bodily functions,” such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, circulatory, respiratory, endocrine, hemic, lymphatic, musculoskeletal, special sense organs and skin, genitourinary, and cardiovascular systems, and reproductive functions.

• MLAs also include: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, sitting, reaching, interacting with others, and working.

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Americans With Disabilities ActAmendments Act of 2008

• makes important changes to the definition of the term "disability" and makes it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.

• The term “substantially limits” is to be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.

• An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

• the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids.

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City and State Anti-Discrimination Laws

• New York State and City Human Rights Law, for example

• Applies to all employers with 4 or more employees

• Same protection as American’s With Disabilities Act

• A person has a disability if he/she has a physical or mental impairment – the impairment does not have to substantially limit a major life functioning activity.

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Disclosure in the Workplace

• EMPLOYMENT MEDICAL INQUIRIES

• Does an employer have a right to ask for medical information about me during a job interview?

• Do I have to tell my employer, or prospective employer, my health status at any time?

Post job offer disclosure requirements

On-the-job medical inquiries must be job related

• Is my confidentiality protected if I tell my employer my health status?

Protected medical information under ADA

• Can I be fired if I disclose my health status?

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What if my employer discriminates?

Try to resolve through HR department

• review personnel policies for complaint process

• document complaint

If unsuccessful, consider filing complaint with EEOC

• generally within 180 days but may be up to 300 days

• EEOC will investigate

• 90-day sue letter may be issued if not resolved

• State rights complaint may be considered if small employer

• Important to consult an attorney

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REASONABLE ACCOMMODATIONSREASONABLE ACCOMMODATIONS

• What is a "reasonable accommodation"?

• No set list of reasonable accommodations

• Employer and job specific

• Cannot cause an undue hardship for employer (usually comes down to costs)

• Examples

– Flexible work hours - Work space alterations

– Reducing workplace stress- Writing aids

– Written instructions - Automatic doors

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How do I request a reasonable accommodation?

• In writing, to Human Resources if available

• Do I have to disclose my health status if I am seeking a reasonable accommodation?

A statement from a physician is advisable when an employee seeks a reasonable accommodation. Employers may require that the employee provide medical documentation to establish that the employee has an ADA disability and needs the requested accommodation when the disability is not otherwise obvious

Some employers have an actual medical inquiry form, other employers may simply accept a letter

Employer access to full medical records not required

• Once I request an accommodation, does my employer have to grant the request?

• Can also file EEOC claim for failure to accommodate

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Model Physician Letter for Reasonable Accommodation Request

Ask your physician to:

• Identify him/herself as your treating physician

• Identify your medical condition, specifically or generally depending on your wishes

• Identify the symptoms or impairment you have as a result of the health condition

• Identify the reasonable accommodation that can help you continue to perform the essential function of your job

• The Job Accommodation Network (www.jan.wvu.edu) has a useful website with examples.

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TAKING A MEDICAL LEAVE

• Family and Medical Leave Act (FMLA)

• FMLA protects the job of an employee who needs to take time off from work to care for themselves or a qualified family member

• Applies to employers with 50 or more employees

• Employee must have worked at least 12 months and for 1250 hours during the last year

• Unpaid leave with job protection for up to twelve weeks

• Can use accrued paid days off (sick or vacation days)

• Can be used for intermittent leave

• Health insurance/benefits must continue during FMLA time

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Family and Medical Leave Act (FMLA)

• Do I have to disclose my health status to qualify for FMLA leave?

• What if I need time off but do not qualify for FMLA?

• If FMLA leave is unpaid, how am I supposed to pay my bills?

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Short-Term Disability (STD) Leave Short-Term Disability (STD) Leave

• Short term disability – Seven states (CA, HI, NY, NJ,RI, & PR) require employers to offer a minimum level of short-term disability protection.

Many employers offer private STD Plans.

• How do I get short-term disability insurance?

• How do I qualify for STD benefits

• How long will STD benefits last?

• What happens if I can return to work within the STD period, but cannot return within the FMLA period?

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Social Security Disability

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Social Security Disability

• Must establish likely will be disabled for at least 12 months

• Can apply on-line, by phone or at local Social Security Office

• Listing: 13.10 Breast (except sarcoma—13.04) (See 13.00K4.)

• A. Locally advanced carcinoma (inflammatory carcinoma, tumor of any size with direct extension to the chest wall or skin, tumor of any size with metastases to the ipsilateral internal mammary nodes).

• B. Carcinoma with metastases to the supraclavicular or infraclavicular nodes, to 10 or more axillary nodes, or with distant metastases.

• OR

• C. Recurrent carcinoma, except local recurrence that remits with antineoplastic therapy.

Five Step Sequential Evaluation Process

• Step One: Is applicant working?• Step Two: Does the applicant have a severe

impairment? (likely to last 12 months)• Step Three: Is the applicant’s medical

condition found in the Listing of Impairments?• Step Four: Can applicant do past relevant

work?• Step Five: Can the applicant do any other

type of work?

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SSD COMPASSIONATE ALLOWANCES

• Social Security now has an obligation to provide benefits quickly to applicants whose medical conditions are so serious that their conditions obviously meet disability standards.

• Breast Cancer - with distant metastases or inoperable or unresectable

• Does not alter 26 week waiting period for SSD

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SS and Medical Insurance

• All SSI recipients automatically receive Medicaid benefits.

• All SSD recipients receive Medicare after 24 months of benefits.

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Long Term Disability

• Long-Term Disability (LTD) Leave

• Will I qualify for LTD benefits if I have breast cancer?

• Once I qualify for LTD benefits, can I keep them forever?

• When and if I do return to work, what will happen to my LTD benefits?

• What happens to my LTD policy if I leave work?

HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996

• Title I of HIPAA protects health insurance coverage for workers and their families when they change or lose their jobs.

• Title II of HIPAA requires the establishment of national standards for electronic health care transactions and national identifiers for providers, health insurance plans, and employers. (Privacy)

• Group health plan may not establish rules of eligibility, charge greater premium or deny enrollment based on employee’s health

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ACCESS TO EMPLOYEE BENEFITS

• Group Health Insurance

• Will I qualify for my employer's group health insurance plan if I have breast cancer?

• What is portability, and how can I overcome the pre-existing condition limitation in my new health insurance plan?

• How will my new insurer know that I have portability?

• When I leave my job, can I take my health insurance with me?

• When I start working for a new employer that offers health insurance, should I drop my COBRA coverage from my prior employer?

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Continuation of BenefitsContinuation of Benefits

COBRA:

• Federal: 20 or more employees

• State Law: i.e. NY: 2 or more employees, 36 months

• 18 months, extends to 29 if disabled and:

SSA must determine that the disability commenced at some point during the first 60 days of COBRA continuation coverage; and

Must notify Plan Administrator within 60 days after the later of (1) when you received the SSA determination or (2) when your COBRA continuation coverage began.

Disability extension applies to the person disabled, as well as to all family members with the same COBRA coverage.

Premium may increase as the Plan can charge up to 150% of the plan’s total cost of your coverage for the disability extension period.

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Changes in insurance requirements based on health care reform

Bans lifetime and annual coverage limits

No co-pays for preventive care

Insurance companies prohibited from dropping patients when they get sick

No pre-existing condition exclusions after 2014 for adults

(2010 for children). Until then:

Pre-existing condition policies (NYC $421 monthly)

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Contact LegalHealth

Debra Wolf(212)613-5082

dwolf@nylag.org

For more information visit our website www.legalhealth.org