Employment Law Attorneys

WSJ Article: Stressed at Work? Here’s When to File for Disability Benefits (Quoting Mark Carey)3 min read

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.

The details

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.”

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