Employee may be able to file for short-term disability with proper medical diagnosis, but there are other options to consider
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Short-term disability leave is six months and pays out a portion, usually around 60%, of an employee’s salary.
By Anne Steele Oct. 4, 2020 3:00 pm ET
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I have stress about Covid-19 at my office. Can I file for short-term disability?
The bottom line
Employees may be able to file for short-term disability if a medical professional diagnoses them with an anxiety disorder, depression or other mental illness due to that stress. But there are other options to consider under the Americans With Disabilities Act, depending on the person’s condition and workplace environment.
This worker’s situation is common these days.
“We get this question every week multiple times a week,” says Michelle Barrett Falconer, a partner at employment law firm Littler Mendelson.
First, workers should consult their employee handbook or human-resources portal to find out whether their company provides for short-term disability benefits. Five states—California, Hawaii, New Jersey, New York and Rhode Island—also have such programs. To apply, employees need a medical provider to identify they are temporarily disabled from performing their particular job.
“Stress itself is not going to be a reason. It has to manifest in some physical or mental condition,” says Alex Berke of Berke-Weiss Law, noting that some short-term disability plans have exclusions for mental health.
Valdi Licul, partner at Wigdor, says many insurance companies have put out FAQs in recent months. He says employees shouldn’t be afraid to ask to see the policy, which usually has a “summary plan description” explaining the worker’s rights in layman’s terms.
Carey & Associates’s Mark Carey recommends applying for short-term disability and leave under the Family and Medical Leave Act—which has a lower threshold for approval—at the same time. Short-term disability leave is six months and pays out a portion, usually around 60%, of an employee’s salary. FMLA is 12 weeks and typically unpaid, but offers job protection during the time of leave, which short-term disability doesn’t.
Both are protected under the Americans With Disabilities Act. But lawyers also recommend using the ADA to seek other reasonable accommodations, such as working remotely, having a single closed room to the employee’s self, or a flexible or staggered schedule. Such accommodations are worked out during what’s called the “interactive process” between worker and employer.
If an employee’s stress stems from their being part of the immunocompromised or at-risk population, the ADA can also help.
Ms. Falconer, who works on the employer’s or defense side of litigation, says while most cases coming in stem from the employee having a generalized stress about Covid-19, some are more directly linked to the workplace itself. Employees who are stressed because of their work and the fear of catching the virus may be able to file a worker’s compensation claim.
“For fictional worker Larry, let’s say part of his job is going to public events and he’s supposed to go speak at a banquet,” she says. “If his boss says you’ve got to go speak and he says I’m so fearful and the boss is putting pressure on him, he may say he has stress as a result of Covid and the pressure the boss is putting on him, which could be psychiatric injury.”
Link to WSJ Original
Even after weeks of quarantining and social distancing, we continue to read about alarmingly high statistics related to Covid-19 illnesses, hospitalizations and deaths. Regardless of which side of the political spectrum you are on, we can all appreciate the double edge sword of getting back to our normal way of living and returning to our jobs versus the risks of further spread and outbreaks. Sure, going back to work and getting a paycheck is the goal in theory, there are likely many of you who are scared in practice. Will I be safe at work? What precautions will my employer take to minimize risk? Will I be subject to having my temperature taken every day? Will I have increased exposure to the virus on my commute? I managed to avoid contracting the virus all this time and I am now fearful, I will get it by being around others at my workplace? These are all legitimate concerns. But now consider all of the above concerns if you are someone who is already disabled, someone who has an autoimmune disease, someone who is pregnant, someone who is older, someone who has an anxiety disorder, someone who is battling cancer. What rights and protections do these compromised employees have when told they need to report to the office on Monday AM? And how to do we all address their important needs?
WHAT IF I AM HEALTHY, BUT JUST SCARED?
The Americans with Disabilities Act (“ADA”) prevents employers from discriminating against employees with disabilities and continues to apply during the COVID-19 pandemic. The tricky part about establishing a case of disability discrimination is that the employee must be able to show that they were able to perform the essential functions of their jobs with or without reasonable accommodations. In other words, just because you have a disability, does not mean you are automatically guaranteed full protection from an adverse employment action as you still must be able to perform your essential job duties with reasonable accommodations made by your employer.
If you do not have any pre-existing disability, as defined by the ADA, and are simply scared to return to work or refuse to return to work, you can and might be terminated. After all, how can you perform your job functions if you are not willing or able to work? However, if you can demonstrate that you have developed an anxiety disorder related to COVID-19, you should pursue a reasonable accommodation request with your employer. For example, perhaps you have a compromised family member living at home, or perhaps you were already someone who dealt with anxiety and now find that your anxiety has increased because of COVID -19, or perhaps you have some other emotional or psychological issue that renders you less equipped to manage the stress and fears associated with this pandemic. In these situations, it may be the case that you now have a severe anxiety disorder, a disability which would entitle you to reasonable accommodations from your employer such as being afforded the opportunity to work from home, or to work in an area of the office that is partitioned or secluded from others, or to work on off hours when the office is less crowded. The accommodation requested must be reasonable and must not present any undue financial harm or obstacles to the employer.
Each employee’s situation will need to be evaluated on a case by case basis. If you are able to perform the essential functions of your job from home and if the employer will not suffer any undue hardship from your working from home (or any other accommodation requested), you might be able to reap the benefit of a “disability” protection under the ADA. Thus, if you are physically well, but are simply scared to return to work, there may be other factors at play that will entitle you to seek reasonable accommodations from your employer. Our employment attorneys will be able to help you navigate this, either in front of or behind the scenes.
IF I DO RETURN TO WORK, WHAT CAN I EXPECT?
While the ADA and state antidiscrimination laws continue to apply during the COVID-19 pandemic, these laws do not interfere with or prevent employers from following the guidelines and suggestions issued by the CDC or state and local public health authorities regarding COVID-19. In other words, there will be a great deal of “gray area” regarding what your employer can and cannot do related to COVID-19, but here is some of what you may expect to find upon your return to work.
According to the recent guidelines, employers may screen employees (take temperature) who enter the workplace, and should rely on the CDC for guidance on symptoms associated with the disease. Employers may also administer COVID-19 tests to detect the presence of the virus before permitting employees to enter the workplace, as long as the testing is job-related and consistent with business necessity i.e. health care workers. If an employer requires all employees to have a daily temperature check before entering the workplace, the employer may keep a log of the results as long as the medical information is stored in a manner that maintains confidentiality and is apart from their personnel file, in accordance with the ADA. Despite the requirement of confidentiality, the employer may and should inform the work population if there has been a recent possible exposure or diagnosis and should require that employee to leave the workplace until they are symptom free. Lastly, an employer may require employees to wear protective gear such as masks and gloves and enforce infection control practices such as hand washing and social distancing protocols.
WHAT IF I AM SCARED TO RETURN TO WORK BECAUSE I AM DISABLED, COMPROMISED OR OTHERWISE AT HIGHER RISK?
The CDC has identified certain conditions (for example, lung disease) that put certain people at a higher risk for severe illness if COVID-19 is contracted. Thus, such a condition would fit the scenario of someone with a disability, as defined by the ADA, requesting a reasonable accommodation either to work from home or for additional safety precautions or adjustments at work. Apart from the specific medical conditions set forth by the CDC, there might be additional ones that constitute a disability as defined by the ADA and which therefore would entitle an employee to similar protection. Accommodations for those who request reduced contact with others due to a disability may include working from home as well as changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per the CDC guidelines or other accommodations that reduce chances of exposure. In addition, if you are disabled or otherwise compromised or at risk, other accommodations considered might be temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment to permit an individual with a disability to perform safely the essential functions of the job while reducing exposure to others in the workplace or while commuting.
What protections are provided to employees who are not CDC identified or ADA disabled, but may feel they are otherwise compromised because they are pregnant or older. While pregnancy and age are not “disabilities” and do not fall under the ADA (however, in some states like Connecticut pregnancy is considered a disability), employers must still handle such COVID-19 related matters pursuant to the protections afforded under the discrimination laws, such as Title VII. Thus, while an employer may not be legally required to accommodate a pregnant employee related to COVID-19 (or otherwise), an employer may not lay off, furlough or terminate a pregnant employee solely based on the CDC guidance that pregnant women are more likely to experience severe symptoms or that they should be monitored. The same holds true for employees over the age of 40 or for employees who come from a national origin with a higher rate of COVID-19 cases.
In addition, while a pregnant or older employee may not enjoy the protections of the ADA requirement to reasonably accommodate, there is nothing to prevent that employee from discussing this with the employer and requesting to work from home where it is safer. Further, if the employer is providing accommodations such as working from home or more flexible job hours to their more “desirable” employees on the basis of their younger age or their not being pregnant, that might constitute discrimination and should be addressed.
Lastly, while pregnant or older employees who are at higher risk might not fit under the ADA, all employers are governed by the CDC and OSHA. Employers need to be OSHA compliant always and now more than ever. So, if you believe that your employer is placing you at a greater risk, you may put them on notice of such and demand that they follow the workplace safety guidelines and laws. Most importantly, if you complain about any violations to these laws, it is unlawful for your employer to retaliate against you in any way for doing so. If you believe that is happening to you or might happen to you, we advise you call our employment lawyers immediately.
If you would like more information about this article, please contact Carey & Associates, P.C. and speak to one of our Employment Attorneys. Please call 203-255-4150 or email to firstname.lastname@example.org.
Today I am introducing guest blogger, Heather Carey, MS to talk about stress and 3 important ways to relieve it. Heather is a culinary nutritionist who helps people everyday manage stress so it doesn’t take over their health and wellbeing.
The topic of stress comes up frequently with my clients. The stress from an illness, stress from handling an overwhelming situation at work or stress from gaining weight are just a few of the things I hear about.
People come to see me for very specific reasons. They want to lose the last of the 20 or more pounds that they have been carrying around, they need to eat healthier because of an illness or they have a strong desire to feed their families better. All great reasons to transform the way you eat and think about food.
Yet, before we dig into the obvious, I take the time to uncover what really lies beneath these nutrition goals. Usually, after talking, I discover things such as the job stress that has become so tiring that it has lead to out of control emotional eating and an extra 20 pounds. It could be the diagnosed illness which set off a tirade from the doctor to lose weight. Or, the underlying sense of embarrassment they might feel from really not knowing how to feed their family’s better. They don’t know much about cooking, how to plan, much less eat what the diet gurus tell them to eat.
We need to tackle and understand the emotional part of stress before we can begin to figure out what to do with it.
But here you are, and likely that you are reading this because you are having trouble with your job. Career issues can be extremely stressful. Here are three ways to handle stress, wether you have been fired, are out of a job right now, or are grappling with an illness that is preventing you from working.
Who needs this?
You don’t have to start training for a marathon. But you need to do something. Why? Exercise helps raise our feel good endorphins, helps to distract you from stress, gets you outside and into some fresh air. I always encourage my clients to do something, anything, that feels fun and enjoyable to them. If hiking is your thing, look up different trails in your area to explore. Love to bike? Try a spin class. It doesn’t matter what it is, as long as you like it.
Being a nutritionist, my brain likes to work with facts and studies. Many years ago, meditation felt a bit woo woo to me. There was no way I was going to be able to sit, even for five minutes and not get distracted. Fast forward to today, and you will hear me sing the praises of this ancient practice. At the very least, meditation gives us a chance to calm down our brain in a society that is overworked and over distracted. We are under a state of chronic stress, wether we feel it or not. You can start with 5 minutes. And no pressure to do it right, there is no perfect in meditation. Read about my experience with meditation HERE.
Eat Really Well
Being a culinary nutritionist, this is where I am going to get really specific. I know that our tendency to grab for what we know, and what is comforting, dates back to childhood. I have many memories of bad days and and a pint of ice cream. When we are stressed, it’s time to treat your body and brain lovingly and with care.
What are the best foods for stress? Here’s a start:
Do you see a trend here? All of these foods are high in omega-3 fats, the techie name for brain food. These foods help to calm down your brain and relieve stress. Throw in a whole grain, such as brown rice, and you are eating like a champion. I have a great recipe that I consider my perfect go to anti-stress meal. Grab it HERE.
Stress happens to us everyday, but there are ways that we can make it more manageable. Leave a comment below and tell us what stresses you out and how you tackle it.