Chapter 6
Legal Protections—Employment
Debbie S. had been an office manager for a good-size medical practice for eighteen years when she was diagnosed with colon cancer. At first, her employers told her they would do anything they could to help her. Six months later she found one of her employers asking what she would do when she was on disability. Over the next few months there were more hints that led her to believe they didn’t want her at the practice anymore. She was then terminated with the explanation that decreasing profits were the cause.
Debbie’s story is not unusual.
Federal, state, and local disability laws offer protections to employees and families facing life-challenging conditions. The laws address all aspects of employment, from preemployment through termination of work and job changes. The laws also protect against discrimination in housing, public accommodations, communications, transportation, and construction. This chapter focuses on employment.
In general, you are considered to be “disabled” for purposes of coverage under the Americans with Disabilities Act of 1990 (ADA) and other disability discrimination laws simply because of a diagnosis of a life-challenging condition. The underlying assumption about disability in these laws is that you should not be discriminated against merely because of a diagnosis. When it comes to work, the law assumes a worker can, and should be allowed to, work despite the disability.
You are protected only if the employer or other party is informed about, or has reason to believe, you have been diagnosed with a life-challenging condition. The employer and other covered person must maintain strict confidentiality about your condition.
The term disability for purposes of the ADA and other discrimination laws is not the same as the term disability for purposes of assessing eligibility for Social Security Disability benefits or disability insurance where, as you will see in later chapters, a condition that prevents a person from working is required.
Note. These laws are fairly new and their meaning is still being developed in the courts. This chapter is intended to provide a general overview of how these laws apply so as to assist you in reaching informed decisions. Readers who encounter problems in the areas discussed are urged to seek legal counsel on how the law applies to individual situations.
Section 1. Employment
Under the ADA and the Federal Rehabilitation Act, a covered employer (see section 1.1 below) may not discriminate against a qualified individual with a disability because of the disability. The meaning of this prohibition will be discussed at length throughout this section. Areas protected under the law include preemployment inquiries, reasonable accommodation, leaves of absence, telling and confidentiality, and access to benefits.
Note: The ADA and the Federal Rehabilitation Act differ only as to which employers are covered under each act. Otherwise the requirements and interpretations are substantially similar. For purposes of this discussion, both acts will be referred to as the ADA, except as to the questions of covered employers.
While these laws do not apply to all employment situations, it is important to understand the scope of their protection because state and local disability discrimination laws may apply when the ADA does not, and many of them rely on the ADA as a source for interpretation.
1.1 Covered Employers
• Employers with fifteen or more employees are covered by the ADA.
• State and local governments must also comply with ADA requirements.
• Employees of the U.S. government, or a corporation wholly owned by the government of the United States, are covered by the Federal Rehabilitation Act instead of the ADA. The military, however, does not have to obey either the ADA or the Federal Rehabilitation Act, except with respect to civilians.
• Employers with fewer than fifteen workers are covered by state or local laws. Contact your state or local “equal employment opportunity” or “human rights” office. Check the state and local government section of your telephone book. The Equal Employment Opportunity Commission Public Information system can help you locate the correct agency (800-669-4000). For additional advice, contact your GuardianOrg.
• Organizations exempt from taxation under 501c of the Internal Revenue Code are not covered under the ADA. These organizations include charitable organizations that fit within 501c(3), “bona fide private membership clubs,” and labor or fraternal organizations.
1.2 Disability for Purposes of the Americans with Disabilities Act
Disability for purposes of ADA means
• a physical or mental impairment that substantially limits one or more major life activities; or even
• the perception of disability—which can come from the current perception of an impairment as well as a history of impairment. For purposes of the law, the mere diagnosis of a life-challenging condition such as HIV/AIDS and cancer can create the perception of “having an impairment.” In addition to those currently battling an illness, the ADA also protects survivors from future discrimination based on past illness.
As this book was going to press, the meaning of the term disability as it applies to symptom-free people diagnosed with a life-challenging condition was under consideration by the U.S. Supreme Court. As a practical matter, for most people in this category the need for an accommodation does not arise. If you are asymptomatic and develop a problem at work related to your condition, consult your GuardianOrg or an attorney for advice tailored to your needs.
1.3 Hiring and Rehiring
Voluntary information. A preemployment interview is not a confessional—you do not have to volunteer any information about your health. The only information that is relevant relates to your ability to perform the essential duties of the job you seek.
Questions from employers—before an offer is made. Before the ADA, prospective employers often requested medical information from the applicant at the same time as other information. Those rejected had no way of knowing if a medical condition was the reason for not being hired. The ADA was designed to isolate the employer’s consideration of health information, enabling applicants to assess whether the employer unlawfully discriminated against them based on disability.
Under the ADA, the only questions a prospective employer may ask you during the preemployment process relate to your ability to perform the essential duties of the job under discussion. Prospective employers may not ask any questions that tend to elicit medical information or require medical examinations until after a provisional offer of employment has been made. Thus, at this interview stage, it is illegal to ask you or your previous employer questions related to your health, including what prescriptions or over-the-counter drugs you take or even whether you’ve missed work in your previous job due to illness.
If your disability is somehow apparent, even if the employer has reason to believe that the disability may interfere with or prevent the performance of job-related duties, the employer may not ask about the existence, nature, or severity of the disability. On the other hand, the employer is allowed to ask specific questions about your ability to perform the essential duties of the job. For example, an employer may ask an applicant with one leg who is seeking employment as a home washing-machine repair person how she would be able to transport herself and her tools down basement steps. It would not be appropriate for the employer to ask how the applicant lost her leg, because the loss of the leg may indicate some underlying impairment that may be a disability under the ADA. It is also inappropriate to ask an applicant with a known disability how she would accomplish a task not related to her disability, unless the inquiry is made of all applicants.
Employers may not refuse to hire you now because they fear you will become too ill to work in the future. The only relevant consideration is how well you can perform now. They also cannot take into account possible higher medical insurance costs, workers’ compensation costs, or absenteeism.
Employers may discriminate against people who pose a direct threat—a significant risk of substantial harm—to the health or safety of themselves or others, as long as that risk cannot be eliminated or reduced below the level of a “direct threat” through reasonable accommodation. An employer may not just assume that a threat exists: there must be objective, medically supportable proof.
Tip. If you want to know more about the questions an employer can ask you, contact the EEOC at 800-669-3302 or 202-663-4900.
For tips on what to say and what not to say during a job interview, see chapter 7, section 4.3.
Questions from employers—after an offer is made. After a conditional offer of employment is made, the employer may request medical information and require medical examinations, but only
• if such information is asked of all applicants, and
• if there is a legitimate business reason for asking.
If information about a disability is revealed during this process, and the applicant is not offered the position because of the disability, the employer must be able to demonstrate that the exclusion is (1) job-related, (2) consistent with business necessity, and (3) that no reasonable accommodation was possible. (See the next section for a discussion of “reasonable accommodation.”)
Reemployment inquires. Your employer is allowed to seek information about your health when you return to work after a disability leave. Again, the scope of the inquiry is limited to your ability to perform the duties of the job, nothing more.
1.4 Reasonable Accommodation: When a Disability Interferes with Work
Once an offer has been made, as well as during the entire period of employment, the ADA protects workers with disabilities (under the law, such a person is known as “a qualified person”) who can perform the essential functions of the job they have or seek with or without reasonable accommodation. There is no requirement to be able to perform the job perfectly, only that you are qualified for it and that you can perform the essential functions.
Essential functions. Essential functions refer to those tasks that are absolutely necessary to the successful performance of the job. To determine the essential functions of a job, consider three factors:
• Performance of the task is the reason the position exists.
• A limited number of employees are available to perform the task.
• The task may require highly specialized expertise, limiting hiring to persons with those skills or training.
For example, the essential functions of a secretary are to answer the phone, to take messages, to work on a computer or a typewriter, to handle people, and to organize schedules and paperwork. The ability to walk is an incidental or marginal job function, not an essential one.
Reasonable accommodation. With many illnesses, there will be a disability-based limitation that will require some kind of an accommodation. The law requires that employers provide “reasonable accommodations” for employees with disabilities who can perform the essential functions of the job. An employer may do more than required by the ADA, but may not do less.
The law only comes into play when an employer is aware of a disability and an employee seeks reasonable accommodation. In other words, you are not protected unless the employer is aware of your condition. This means that if the lack of an accommodation is affecting your job performance, but you do not request accommodation from your employer, you would not be protected by the ADA if you are discharged for poor performance.
Under the ADA, “reasonable accommodation” may include
• making existing employee facilities readily accessible to, and usable by, individuals with disabilities.
• job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modification of equipment or devices; appropriate adjustment or modification of examinations, training materials, or policies; providing readers or interpreters.
• something as simple as permitting an employee to telecommute (work at home with a telephone and perhaps a computer).
Any accommodation will be an inconvenience to the employer. That doesn’t matter. The employer must provide accommodation so long as it does not result in an “undue hardship” to the employer. Undue hardship is a relative term and must be examined in each instance. Undue hardship means an action requiring significant difficulty or expense when considered in light of various factors, including but not limited to
• the nature and cost of the accommodation.
• the overall financial resources of the employer.
• the number of persons employed.
• the effect on the employer’s finances or resources or other impact of the accommodation.
A company like General Motors will clearly be required to do more to accommodate its employees than a small law firm.
Examples of reasonable accommodation.
• Kathy B. is a schoolteacher who experienced problems with memory, coordination, concentration, and balance as a result of an automobile accident. A school district could reasonably accommodate Kathy by providing her with a teaching assistant.
• Rhona L., a chemist with severe depression, had limited ability to deal with the public. However, only about 5 percent of her job involved communication with the public. Her employer reasonably accommodated Rhona’s condition by changing the job and allowing her to communicate by mail, or if telephone contact was required, providing someone to talk for her.
• An employer with many offices and locations might be required to consider transferring a worker to a location where better medical treatment would be available if a similar position is open there.
• Jim W. worked as a night-shift data-entry operator, but could no longer work at night because it made his clinical depression worse. Since no accommodation could be made in his current position, his employer could reasonably be required to accommodate him by transferring Jim to a day-shift data-entry operator position if one was available, or even a different day-shift position for which he qualified if no daytime data-entry operator positions were available. This does not mean that Jim’s employer is required to bump workers from other positions or that the employer must create a new position.
• An employer is not obligated to provide the accommodation that the employee desires. The employer is only required to provide some reasonable accommodation. Thus, a hospital was not required to offer a transfer to Peter N., a probationary hemodialysis nurse who was having difficulty mastering the tasks of his job because of his disability, where instead the hospital offered Alan additional training. While transfer may have been a reasonable accommodation, so was the additional training, and the employer could exercise its discretion in offering its preferred accommodation.
• Requiring a small law firm on the fourth floor of a walk-up building to put in an elevator is an undue hardship.
Tip. Be aware that if the accommodation involves doing less work, your employer may pay you less. However, your insurance benefits may not be decreased.
If you requested a reasonable accommodation such as recovery time after a chemotherapy treatment and it was rejected, don’t just take the time off and call in sick. Write a letter to human resources as well as to the appropriate person in the chain of command, such as the president of the company. Explain that you requested the day off, which should have been granted under the Americans with Disabilities Act (or other appropriate law), and that you would appreciate reconsideration.
Tip. Where there may be a reaction that will prevent your working for the next day or two, schedule chemotherapy and other treatments for after work on Fridays or before holidays.
Getting a reasonable accommodation at work. You need to make an honest personal assessment of what workplace accommodation you require to enable you to continue working. Talk to your physician(s) for advice about the limitations imposed by your illness. This is an assessment that you will have to revisit if your health changes.
Negotiating a reasonable accommodation from your employer involves balancing your needs against the financial resources of the employer. As you undertake the negotiation, think of your relationship with your employer as a cooperative problem-solving relationship rather than an adversarial one.
Tip. Start the negotiation by jointly reviewing your job description and the essential functions of the job. Identify and evaluate potential accommodations. Look for the accommodation that works best for you without “undue hardship” on the employer.
If you are aware of others in your workplace who have required and received accommodation, you might want to try to learn from their experience. You might also want to ask for advice from the Job Accommodation Network (JAN). JAN provides free information about job accommodation and the employability of people with disabilities. With a call to 800-526-7234 (8 A.M. to 8 P.M. ET, M–Th, and 8 A.M. to 5 P.M. on Fridays), a professional consultant will ask a few simple questions about the requirements of the job, you, and the work environment. Based on the information you provide, JAN will recommend accommodations for your situation.
Where appropriate, JAN will provide the names and phone numbers of employers or workers who have made similar accommodations and provide other information, such as training programs, job descriptions, funding resources, and tax incentives.
1.5 Confidentiality and Disclosure
Whether or not to disclose your diagnosis to your employer and your coworkers is up to you. Legally
• you are not required to reveal any information about your health status to your employer unless there is a legitimate business reason.
• you can’t be discriminated against because of your disability. However, the law only comes into play when your employer is aware of your disability. The only way you can prove that the employer had such an awareness is if you can document that you informed your employer. When asking your employer for a reasonable accommodation, it isn’t sufficient to say, “I have a disability covered by the ADA that causes problems at work.” The employer has the right to medical documentation of your disability and the limitations resulting from that disability.
The only exception to the rule that you don’t have to disclose your health status is if the disease is somehow relevant to the performance of the essential duties of the job. For example, a court has held that a hospital could require, as part of its infection-control practices, that an HIV-infected worker disclose his HIV status. Discharge for failure to do so is viewed as a discharge for failure to comply with an employer policy, rather than discharge because of a disability.
In addition to obtaining a “reasonable accommodation,” disclosing your condition may elicit social support, care, and generosity from your coworkers, as well as information from others who have been in a similar situation. Disclosure, particularly if it is in writing, may even prompt your employer to find out what his/her legal rights and/or obligations are. It also lets your employer know that you know your rights and won’t accept any less.
On the other hand, a lot of people view the situation as Michael N. does: “If you don’t have to tell, don’t tell the employer until you’re ready to jump off the boat into disability.” Not only do you avoid any questions about matters such as pay raises, you may also avoid subtle (or not so subtle) changes in work relationships. While not telling may be the most protective strategy to maximize your income, there is the price in stress of keeping this major personal event secret.
Tip. It is helpful to do a Life Units analysis here. Disclosing your condition and getting accommodation will mean making your job more doable—less time-consuming or tiring—resulting in an increase in Life Units available for anything else you want to do. Figure out if telling will cause you more or less stress. Will it have other consequences? The bottom line is, if you want or need some accommodation at work, some disclosure of health information will be required.
What you disclose to your employer is confidential. Any medical information that you provide to your employer must be maintained on separate forms and in separate medical files and must be treated as a confidential medical record. The only exceptions to the requirement for confidentiality are that
• the employer may provide relevant information to supervisors and managers regarding necessary restrictions on your work duties and necessary accommodations.
• supervisory and safety personnel may be provided with relevant information for emergency situations.
• government officials investigating compliance with the ADA must be provided with relevant information on request.
Whom you tell will vary depending on where you work. In a large employment setting, consider telling someone in the human resources department rather than your immediate supervisor. The larger the company the more likely that someone in human resources will have the knowledge, training, and/or experience with the law and company policies to secure the accommodation you need, and to keep the information confidential as required by law.
Tip. The reality of most employment settings is that nothing is confidential. However, it is some consolation to know that the law provides a remedy if you are harmed through your employer’s disclosure of information.
Prepare what you will say. Before you talk to your employer, play out the discussions in your head and prepare yourself for all conceivable reactions to the news. Decide whom you will tell and decide whether you want any others present. You may even choose to have someone else tell your employer, such as a union representative or someone in personnel. Decide up front how much you wish to tell, but be flexible so that you can be prepared for any conversation. Carefully prepare so that you do not disclose more than you had planned.
When to tell your employer. Consider the timing of your disclosure. You may not have any choice if you need some accommodation immediately. However, if there is no immediate need to disclose, consider not disclosing at all or timing your disclosure so that it comes at the best time for you—not during a crisis and not before a raise or bonus is due. After disclosure, you should be prepared for the possibility of a job and salary freeze.
Tip. If timing when you tell is important to you, and you have health insurance coverage through your employer, consider whether the claims you make under the plan will result in a disclosure before you are ready. Under the law of most states, information relating to your health is confidential. The insurance company is not supposed to inform your employer about your health. However, a friendly relationship between the benefits person in your company and the contact person in the health care company can lead to gossip. Under an indemnity policy, you can choose to pay the costs yourself until either you are ready to tell or the dollar amounts become so large that you are willing to take the risk.
What you disclose to coworkers is not confidential under the ADA. Before proceeding, carefully evaluate your motives for telling a particular person and the benefits of such disclosure. It is also important to recognize that there may be some people you should never tell.
Keep in mind that with respect to accommodation, coworkers may wonder why your schedule has suddenly become flexible, or why you have received some other accommodation. This can lead to negative attention as opposed to the support that you might get if your coworkers were aware that your schedule has been modified because of your life-challenging condition. Consider discussing with your employer the possibility of providing coworkers with information about your illness. In fact, employer education of the workforce can be a part of the accommodation necessary for you to be able to do your job.
Reactions can change over time. Keep in mind that reactions may change as information is processed and others see the extent to which your condition does or does not affect your performance. An initial negative reaction may change to a positive one. On the other hand, when they first learn of your condition, many employers will tell you they will do anything they can to help you, but they may have second and third thoughts as they live with the situation.
1.6 Protecting the Family and Friends of a Disabled Person from Discrimination at Work
Sometimes workers will be subjected to discrimination at work because a family member or someone with whom they are known to have a relationship or association suffers from a disability—even if the cause of the disability is not contagious. Such discrimination can be caused by a variety of motivations including ignorance, prejudice, or a fear that the disability will increase the costs of family health benefits coverage for everyone. In addition to prohibiting disability-based employment discrimination, the ADA also prohibits excluding or otherwise denying equal jobs or benefits to a qualified individual because the person is known to have a relationship or association with an individual who has a disability.
1.7 Advancement Issues and Bonuses
An employer is prohibited from limiting your duties based on a belief it is best for you or based on a presumption of your abilities. As in other areas, the law requires that an individualized assessment be made as to the employee’s ability to advance.
Your employer is also prohibited from demoting you, denying you pay raises, or limiting your bonuses based on your condition.
Tip. Obtain copies (or at least make journal entries as they occur) of positive job actions such as a performance evaluation. They can help prove you were qualified for the job in the event you are later discriminated against.
1.8 If You Are Discriminated Against
Discrimination can be difficult to prove. Discrimination is generally not like a car crash: it doesn’t usually happen all of a sudden. It’s seldom as overt as an employer telling you your salary is being cut or your raise is not being given or you are being terminated because of your condition. A discriminatory employer is more likely to blame your job performance or economic conditions for a decision to demote or terminate you.
As soon as you believe you may be subject to discrimination:
1. Immediately start keeping a journal of the events that appear to be discriminatory. Update the journal daily, at night rather than at work so people don’t see what you are doing. Include dates, a description of what happened, and list the names and addresses of all participants and witnesses, if there are any. Preferably, the journal should be handwritten so it shows it hasn’t been altered. Don’t “fix it up” later, that hurts the value of the journal. Be sure to include positive performance comments or evaluations that may help to prove you were qualified for the job.
2. You don’t want to say something that could jeopardize your legal rights. Consult a lawyer familiar with employment discrimination. The lawyer will also know the statutory deadlines you have to keep in mind, some of which can be very short.
3. With the advice of a lawyer, try to resolve the matter with your employer.
• Use your employer’s policies and procedures for resolving employment issues.
• Perhaps one of your support team members can help negotiate a reasonable accommodation.
• Enlist the cooperation of coworkers—they may need similar help one day.
• Consider requesting that your employer use a third-party mediator.
4. Get help from federal, state, or local agencies that safeguard the rights of people with disabilities, including the federal Equal Employment Opportunity Commission.
Tip. If you believe you have a claim against your employer and leave your job for whatever reason, signing a release to the employer will prevent you from doing anything about that claim.
Before you can sue. If your state does not have antidiscrimination laws, you must file a complaint with the EEOC within 180 days after the alleged discriminatory act. If your state has an antidiscrimination regulation, you must file a complaint with that agency first. You can file a complaint on your own, but I suggest seeking legal advice first.
Also, think about
• what you want to achieve in a lawsuit. Do you want your job back? Money? A change in the employer’s policies to benefit other workers? Something else?
• the advantages and disadvantages of a suit. Is what you want to achieve worth the stress and the alienation of your employer and/or possibly your friends at work?
Damages under the ADA. If you win a claim for violation of the ADA, you win
• your costs.
• damages to the extent that you were not able to mitigate (reduce) them. For example, if you’re fired, you have to look for another job, even one that may pay less. Keep a log of what you did to mitigate your damages. A journal of your subsequent job search would include want ads, phone calls, interviews and results—with names and dates.
Your damages may include
• back pay (what you would have received).
• benefits.
• front pay (wages you’ll lose because you can’t get another job, or compensation if you do get one for less money).
• compensatory damages to make up for any other damages you may have incurred.
• injunctive relief such as reinstatement.
• punitive damages up to $300,000 to punish the employer and deter it from future illegal discrimination.
• attorney fees.
Collecting disability benefits while pursuing a suit under the ADA. In several court cases, workers who were discharged because of their disabilities have filed suit against their employers, alleging disability discrimination, and in the meantime have sought disability benefits under Social Security. There is a conflict between alleging discrimination that indicates you are able to continue to work while at the same time requesting benefits under Social Security, for which you have to state you are disabled and cannot work.
Some courts have recognized that workers may be “disabled” for benefits purposes, but could work if reasonable accommodation were provided. Other courts have held that seeking disability benefits is inconsistent with seeking protection under the ADA. Officials of the Equal Employment Opportunity Commission and Social Security are attempting to resolve this matter as this book is being written. If this matter is of concern to you, ask your GuardianOrg or an attorney for the latest information.
Federal Rehabilitation Act. If your employer receives federal funds, you should file the complaint with the federal agency that provides the funds to your employer. Remedies are the same as under the ADA, except there are no punitive damage awards.
Tip. Consider filing a complaint with each relevant enforcement agency. You can put a complaint on hold or drop it after you see which agency is responding best.
Section 2. Leaves of Absence: Family and Medical Leave Act and the ADA
If you need to take a leave of absence because a serious health condition prevents you from performing one or more of the essential functions of your job, you may want to consider whether you are entitled to a leave under the Family and Medical Leave Act (FMLA) before you request a leave as part of a reasonable accommodation under the ADA. A leave of absence is also available under the FMLA to care for your spouse, child, or parent with a serious health condition.
2.1 Leaves of Absence Under the FMLA
Eligibility. To be eligible for a leave under the FMLA
• you must work for an employer covered by the law. All state and local government employers are covered by the FMLA, but the law only covers private employers with fifty or more employees who work within a seventy-five mile radius of your job site.
• you must have been employed by the employer for at least twelve months and accumulated 1,250 hours of service with the covered employer for the twelve-month period prior to the leave.
• you must provide a reason for the leave that is covered under the law.
• you must earn less than the employees in your company’s top 10 percent salary range of employees within a seventy-five-mile radius of your job site.
Tip. If you are not covered under the FMLA, check to determine if your state has comparable provisions under which you may be covered.
Amount of leave of absence. An employee entitled to FMLA leave may take up to twelve weeks of leave in a twelve-month period. An employer can choose to count accrued paid benefits such as vacation, sick leave, and personal leave days as part of the leave or add them to the leave, depending on the company’s policy. For example, if an employee already took two weeks’ vacation, there might only be ten weeks of protected job leave left.
Special rules apply to employees of “local educational agencies,” including elementary and secondary schools, but excluding colleges, universities, trade schools, and preschools.
Continuity of leave of absence. If the leave is for an employee’s own condition, the leave does not have to be continuous. It can be broken up over the year, and only the time actually taken counts.
Continuation of health coverage during leave of absence. Employers are not required to pay an employee while on leave. However, a major protection in the law is that the employer must maintain the employee’s existing level of coverage in a group health plan, including a continuation of the pattern of paying premiums. Thus, if an employer pays part or all of an employee’s premiums, it must continue to do so while the employee is on leave.
If the employee pays for part of the health benefit, the employer’s obligation to continue health benefits in force ends if
• the employee doesn’t make premium payments when due (including the grace period, if any);
• the employee quits or doesn’t return to work; or
• the employee has used all the time permitted under the act.
In these instances, the employee should look at the discussion about COBRA to determine if there is a right to continue coverage under that act (see section 4 of this chapter).
Employment after leave of absence. Another good feature of the law requires the employer to reemploy the employee in the same or a similar position at the end of a leave. If the employee is no longer able to perform an essential function of the job at the end of the leave, reinstatement is not required. If the inability to perform the essential function is due to a disability covered by the ADA, the ADA’s reasonable accommodation requirements come into play as outlined below.
Notice of leave of absence. If leave is requested, the employer must be given at least thirty days’ notice unless the situation was not “foreseeable,” in which case notice must be given as soon as practicable.
Proof of medical condition. If leave is requested, the employer may request, and the employee must provide, proof about the physical condition of the employee or the person to be cared for.
Complaints. If you believe your rights under the FMLA have been violated, you may file a complaint with the Employment Standards Administration, Wage and Hour Division, of the U.S. Department of Labor.
2.2 Leaves of Absence Under the ADA
If your employer is covered by the ADA, leave may be available as a reasonable accommodation, so long as leave does not cause the employer undue hardship. The undue hardship concept also governs the available length of ADA leave. During an ADA leave, the employer only has to maintain benefits coverage for an employee if it maintains coverage for other employees on similar leave. At the end of an ADA leave, the employee is entitled to reinstatement unless the employer can establish that keeping the position open is an undue hardship. The employer must then consider placing the employee in available equivalent positions. If none exist, then the employee must be considered for positions at a lower level. The duty to accommodate ends after that.
Tip. The requirements of the FMLA and ADA are only minimum requirements and, as you have seen, only govern in certain instances. It is worthwhile to check your employer’s policies: they may go well beyond the legal minimum. Even if they don’t, you may be able to negotiate better for yourself.
2.3 Combining Your Rights to a Leave of Absence Under the ADA and the FMLA
Leaves of absence for yourself.
• If you work for an employer subject to the FMLA and you meet the leave eligibility requirements, you are entitled to a leave upon request to your employer. If, however, your employer is not covered by the FMLA, but is subject to the ADA, you can request a leave as a reasonable accommodation, so long as the condition for which you seek leave is a disability under the ADA. Your employer, however, is not required to provide the leave, if such leave poses undue hardship or if some other reasonable accommodation is available and the employer offers it.
• If you take a leave under the FMLA and still require more time off after twelve weeks, you may request that your employer consider leave as a possible ADA reasonable accommodation. The condition for which you seek leave must be a disability under the ADA, and the undue-hardship analysis comes into play.
• If, during a twelve-month period, you have taken a leave as an ADA reasonable accommodation, you would only be able to take an FMLA leave during that same period to the extent that the prior leave did not exhaust the twelve-week FMLA maximum.
Leaves of absence to care for others. While a worker may be entitled to a leave under the FMLA to care for an ill child, spouse, or parent, such leave is not available as a reasonable accommodation under the ADA. Reasonable accommodation only applies to a worker’s disability-related limitations.
2.4 The FMLA and “Nontraditional” Family Relationships
The FMLA only allows a leave to care for a husband, wife, father, mother, or child. If you need to take a leave to care for someone who does not fit into one of the FMLA “family” categories, consider requesting such a leave from your employer, pointing out that the relationship you have with the ill person is similar to one of the FMLA categories. Unmarried heterosexual or same-sex couples in such a situation should determine whether local law or employer internal policy prohibits discrimination based on marital status or sexual orientation. If such a prohibition exists, you could suggest to your employer that failure to provide leave violates it because leave is conditioned on being married. You might want to discuss this issue with a lawyer should you wish to pursue it.
2.5 Unprotected Leave
Even if your employer is not covered by the FMLA, you may request that you be provided with an unpaid leave to care for a loved one. For many employers, providing unpaid leave is preferable to losing an experienced worker. In addition, while they are not required to do so, many employers allow workers to use their own sick-leave time to care for an ill family member.
Section 3. Benefit Protections While You Are Employed
When an employer becomes concerned about increasing insurance costs associated with employee illnesses, it may attempt to take steps to limit costs. An employer’s ability to do so may be limited by the Employee Retirement Income Security Act (ERISA), by the ADA, and by the Health Insurance Portability and Accountability Act of 1996 (HIPAA).
3.1 ERISA
ERISA prohibits an employer from discharging or discriminating against a worker for exercising rights under an employee benefit plan. That means that you cannot be fired or otherwise discriminated against because you are using the employer’s health plan.
3.2 ADA
Under the ADA, it is unlawful for an employer to discriminate on the basis of a disability with respect to the benefits it provides to its employees. This ADA prohibition does not affect preexisting-conditions clauses in health insurance policies offered to employees unless a preexisting-conditions clause can be shown to be a cover for discrimination. To illustrate, a preexisting-conditions clause that limits coverage only for a discrete group of related disabilities such as hemophilia or leukemia is an unlawful disability-based distinction, unless the employer can show that the exclusion is not discrimination.
Similarly, caps on the dollar amount of coverage are lawful so long as they do not discriminate based on a particular disability. For example, an insurance plan that caps benefits for all physical conditions except AIDS at $500,000, yet provides a $50,000 cap for AIDS, would be an unlawful disability-based distinction unless the employer was able to prove that it was not a subterfuge for discrimination. But an employer’s plan does not violate the ADA, for example, if it provides a lower level of benefits for the treatment of mental/nervous conditions than it does for physical conditions, or if it limits coverage on medical procedures that are not exclusively, or nearly exclusively, used for the treatment of a particular disability.
Section 4. Benefit Protections After Leaving Your Job: COBRA
There are several ways to continue coverage after terminating employment. The most commonly used method is COBRA, the federal Consolidated Omnibus Budget Reconciliation Act, under which certain former employees and their beneficiaries continue health insurance coverage under the prior employer’s group plan for up to eighteen months. If you become “disabled” during the first sixty days of your COBRA coverage, COBRA can continue coverage for an additional eleven months to a total of twenty-nine months. The continuation period was set in a 1989 modification to COBRA known as OBRA so people would continue to be covered by health insurance until Medicare starts, which is twenty-nine months after leaving work for disability (a five-month waiting period, plus twenty-four months of Social Security Disability benefits). If COBRA does not apply, state laws generally provide the same coverage. It is also usually possible to continue coverage to some extent by the terms of the employer’s plan, such as by means of conversion to individual coverage.
Employers covered by COBRA. The law generally covers group health plans (including self-insured plans) maintained by employers with more than twenty employees during at least 50 percent of the prior year. The law applies to private employers and to state and local governments. It does not apply to the federal government and certain church-related organizations. Many states have similar laws that apply to employers with fewer than twenty employees. If you work for an employer with fewer than twenty employees, contact your state Department of Insurance for more details (see the resources section). Some employers not required by state or federal requirements to offer continuation coverage do so anyway, and some employer plans offer continuation for more than eighteen months.
Coverage that is continued. Health, dental, and vision benefits continue under COBRA. Life and disability benefits do not. The health coverage to be continued is required to be the same as offered to the employer’s other similarly situated employees covered under the plan for whom a qualifying event has not occurred. This can be a double-edged sword. If the group coverage for current employees is expanded, so is the continued coverage. On the other hand, if the insurance is eliminated or the company goes out of business, the right to continue the coverage is lost.
When former employees are entitled to seek continued coverage. Under COBRA, former employees may continue health coverage if it would otherwise be lost due to a qualifying event. Qualifying events include
• voluntary or involuntary termination of employment, including termination due to disability—so long as the termination was not due to “gross misconduct.”
• reduction in the number of hours of employment.
• for people over age sixty-five, Chapter 11 bankruptcy filing by the employer.
The COBRA disability continuation. The COBRA disability continuation is not automatic. It must be applied for. To qualify for the continuation
• you must apply for and receive an award of Social Security Disability Insurance benefits (see chapter 8, section 8.1) prior to the end of the eighteen-month COBRA period. Even if you are not eligible for this government benefit, Social Security will still review the claim for continuation purposes, although you may need to see a supervisor.
• the date of disability onset as determined by Social Security and stated in the Notice of Award Letter must be before or within sixty days after the date your COBRA coverage started.
• a copy of the Notice of Award Letter must be sent to the COBRA administrator (usually whoever collects the premiums) within sixty days of receiving the Award letter.
An employee’s spouse or dependent—continued coverage. An employee’s spouse or dependent may continue coverage subsequent to “qualifying events,” which would otherwise result in termination of coverage, including
• termination of the covered employee’s employment for any reason other than “gross misconduct.”
• reduction in the hours worked by the covered employee.
• covered employees becoming entitled to Medicare.
• divorce or legal separation from the covered employee.
• death of the covered employee.
• in the case of a “dependent child,” loss of dependent child status under the plan rules.
Length of time you or your beneficiaries are covered. As you will see in the chart below, the period varies depending upon the qualifying event under which the employee or the employee’s beneficiary became entitled to seek continuation coverage.
COBRA coverage may be retained even after you obtain new group medical insurance to the extent the new employer’s health plan limits coverage with respect to preexisting conditions.
Tip. Consider asking your employer to continue you as part of the group indefinitely. Your employer may agree and may even agree to continue to pay your premiums. There seems to be little, if anything, to lose by asking. To be sure this doesn’t become a problem for the employer (and your coverage), the employer should inform the insurance company of the arrangement.
Notice requirements. Notice requirements are triggered when a qualifying event occurs.
• Your employer is legally required to provide you written notice of your COBRA rights within fourteen days of leaving the job.
• Employees must notify plan administrators within sixty days of a qualifying event or the date you were notified of your rights, whichever is later.
• If a qualifying event affects a qualified beneficiary, the employee must notify the plan administrator within sixty days after the qualifying event. The employer then has fourteen days to notify the beneficiary of the right to continue coverage. The beneficiary has to notify the administrator if the beneficiary wants to continue coverage within an additional sixty days of the date notice is sent, or sixty days of the event, whichever is later.
If you qualify as disabled under Social Security, and you plan to exercise your right to the additional eleven months of coverage, you must notify your employer or the plan administrator during the initial eighteen-month period and within sixty days of the Social Security Administration (SSA) determination of disability. The notification must state that you have been determined to be disabled by the SSA and request continuation of your health coverage for the entire twenty-nine-month period.
Tip. The notice to your employer should state the date on which the SSA determined you were disabled and that you plan to exercise your right to any continuation of coverage authorized under applicable law. Send the notice in such a manner that you receive a receipt proving the notice was received. Keep a copy of the receipt and a copy of your notice with your important papers.
Tip. If you do not receive COBRA notification, contact your employer’s personnel office or plan administrator and request a COBRA election form. A check payable to your employer for an estimated monthly premium should be enclosed with the letter. Send the letter in a manner that provides a receipt showing it was received.
Payment for the continued coverage. In most cases, the employee or other beneficiary pays the cost of premiums. The employer can voluntarily agree to pay for continued coverage. The premium charged to an employee cannot exceed 102 percent of the cost to the plan for “similarly situated individuals who have not incurred a qualifying event.” There is usually a thirty-day grace period after the due date to pay premiums, but it is best not to take advantage of the grace period because if the premium is late, the coverage can be canceled and will probably not be reinstated. If you cannot afford the premiums, there may be a local program to pay for them. Ask your GuardianOrg.
During the additional eleven months permitted for employees who leave work for disability, the premium may be increased to a maximum of 150 percent. Since this “disability” is determined by the Social Security Administration, be careful when you complete your Social Security application (see chapter 10).
Note: You (and your beneficiaries) have forty-five days after the initial COBRA election to make the required premium payment. The payment should be for the full premium retroactive to the start date.
Termination of COBRA. Cobra ends if
• premiums are not paid as due, or within the thirty-day grace period.
• you become eligible for coverage under another group policy (such as with a new employer)—even if the coverage is not as good as the coverage that is terminating. As an exception, under HIPAA, if the new coverage has a preexisting-condition exclusion that applies to you, the COBRA coverage continues until the preexisting-condition exclusion expires or the end of the COBRA continuation period, whichever is earlier.
• the employer stops offering group health insurance to current employees or goes out of business.
• you qualify for Medicare coverage. If this is the reason for termination, and you anticipate substantial unreimbursed costs under Medicare, consider converting your COBRA coverage to an individual policy or a Medicare HMO.
Section 5. Protecting Your Benefits After Leaving Your Job: Other Rights
5.1 Conversion
If you do not have a legal right to continue your health coverage and have no other method of obtaining health insurance (see chapter 14), look at your group coverage to determine if it contains a right to convert it into individual coverage without evidence of insurability. If it does, the individual coverage is usually expensive and is seldom as good as the coverage from which you are converting, but it is better than nothing. Generally, the conversion must be applied for within thirty-one days of coverage termination.
It is preferable to have both conversion coverage and a disability extension of benefits (see section 5.3 below) simultaneously. The disability extension pays for medical conditions that caused the disability, while the conversion coverage pays for claims not related to the disability. The conversion policy becomes your primary coverage when the disability extension expires.
When plans are converted, employees are usually offered several plan options. It is preferable to choose the option with the best benefits, even though it is probably also the most expensive.
5.2 Changes in the Benefit Plan While You Are Exercising Continuation Rights
Many workers continue to be covered by a former employer’s plan after they are no longer employed. If an employer changes plans while a former employee is exercising continuation rights, the former employee will be covered under the new plan like the rest of the group. Sometimes an employer attempts to make a disability-based change (either by changing plans or within a plan), which could violate the ADA. At least one court has held that because someone exercising continuation rights is no longer an employee, he cannot rely on the ADA to challenge such a change since the ADA only protects employees. This decision is not consistent with other civil rights laws, which have been interpreted to protect former employees. If you have a problem like this, you should consult your GuardianOrg or an attorney familiar with employee benefit and disability law.
5.3 Disability Extension
Under your plan or state law, if you are disabled at the time your group insurance ends, no matter what the reason for the termination of coverage, your health insurance coverage generally continues as an “extension” (usually for one year). Coverage is typically limited to medical expenses directly related to the disabling condition. The disabling condition is the underlying condition, not a resulting condition. For example, if PCP resulting from HIV/AIDS is the immediate cause of disability, health matters relating to the underlying HIV/AIDS would be covered, not just PCP. On the other hand, if you developed medical problems not relating to HIV/AIDS, they would not be covered.
There is no charge for coverage during the extension.
While the extension can start anytime after your group insurance ends (not just when you leave your job), it can be particularly useful if you obtain new health insurance that has a preexisting-condition exclusion, such as with an employer not covered under HIPAA. The new policy would probably exclude a preexisting condition for up to a year, but you would be covered for the condition during that year by the extension of your previous coverage.
Disability extensions are different from COBRA. COBRA must be elected prior to exercising a disability extension. However, disability extensions may be available after COBRA terminates.
The disability extension should be requested in writing from your employer or plan administrator. Since the extended coverage is only for medical expenses caused by the disability, the physician should describe the exact cause of the disability as broadly as possible. All disability-related conditions should be included in the diagnosis.
Tip. If you have to convert your coverage, you may want to exercise your right to a disability extension at the same time. It does not cost anything to extend coverage in this manner, and any expenses paid by the insurance carrier under the extension are not applied against any maximum payment that may be included in the converted policy.
Section 6. Health Insurance Protection: HIPAA
The Health Insurance Portability and Accountability Act of 1996 (HIPAA)—also known as the Kassebaum-Kennedy Act—helps prevent job-lock for people with life-challenging conditions by limiting the use of preexisting-condition limitations in employer plans. The law does not force any employer to provide group health coverage—it only provides what happens if an employer does offer such coverage.
Coverage in a new job. Under HIPAA, no employer group health policy for two or more employees can refuse an otherwise eligible person health coverage if all of the following factors are satisfied:
• You have at least eighteen months of “creditable coverage” and not more than sixty-three days have elapsed between the end of that coverage and commencement of the new coverage. Creditable coverage means health insurance of just about any kind, including group or individual, COBRA, Medicare, and Medicaid, provided there is no gap in coverage that lasts more than sixty-three days between the end of the last coverage and enrollment in the new plan. To assist in proving coverage, the law requires employers to provide departing employees, in writing, the number of months covered under the plan.
• The most recent part of the creditable coverage was under a group health plan of an employer, the government, or a church plan.
• Your last coverage was not terminated due to nonpayment of premiums or fraud.
• You are not currently eligible for group coverage, Medicare, or Medicaid and you do not have any other health insurance in place.
• If you had a chance to continue your former coverage under COBRA or a similar state plan, you selected the coverage, and it is exhausted.
If you qualify under this law, you are also guaranteed the right to renew the coverage. The insurance company can ask health questions, but the information can only be used for rating purposes. The new plan must apply the time you were covered under your prior plan toward the new plan’s preexisting-conditions waiting period. The sixty-three days measured for purposes of prior lapses does not count any probationary period at the new employer.
The law also provides additional protections:
• Your health status and medical condition cannot be considered in determining initial or continued eligibility for health coverage.
• A “health status–related factor” cannot be used to charge one employee higher premiums than other employees.
• The amount or nature of benefits may only be limited or restricted if it applies to all “similarly situated individuals.” For example, a cap on coverage would affect people with a health condition more than the average worker, but it is permissible if it does not discriminate.
• For employees who sign up at the commencement of a new job, the period of a preexisting-condition exclusion cannot be greater than twelve months from the commencement of employment. This limitation ties in with the twelve months’ extension that most people have when they leave previous employment (see section 5.3 above). This preexisting-condition exclusion period can be extended to eighteen months if the employee signs up for the plan after commencement of the new job, so don’t wait.
• The length of the exclusionary period is reduced by the length of previous creditable coverage. To illustrate, if Kristy had health coverage for six months with her previous employer, and only thirty days lapsed between her old and new jobs, and her new employer’s plan has a twelve-month exclusion period for coverage of preexisting conditions, Kristy’s preexisting condition would be covered under the new plan starting six months after she starts the new job. If she had coverage in her old job for at least twelve months, there would be no preexisting-condition exclusion at all!
If HIPAA does not provide the protection you need, check to see if there is a similar law in your state.
Preexisting conditions. HIPAA limits “preexisting conditions” to conditions that required “medical advice, diagnosis, care or treatment … recommended or received” within the six months prior to the new employment. If treatment for your condition was not recommended or received within that time (no matter the extent of treatment prior to that time), an exclusion cannot be imposed by the new employer.
Enrollment periods. The law also provides for special enrollment periods for employees with health conditions who did not sign up for the coverage on commencement of the new job.
Self-employment/New employer without coverage. If you leave an employer with a group health plan and become self-employed or go to an employer that does not offer health insurance, in addition to your rights under COBRA, if there was prior coverage for at least eighteen months and you obtain the new coverage within sixty-three days after termination of coverage, you will be able to obtain coverage from any company writing individual health insurance in your state with no preexisting condition exclusion. The law requires the insurance companies to offer at least two of their most popular plans based on premium volume. The law does not set any rate limits on this coverage.
Tip: If you are going from group to individual coverage, anticipate the end of coverage and start applying for the individual insurance prior to the end of COBRA or the state continuation if the group you are leaving is not COBRA eligible. It often takes more than sixty-two days to identify the company and the plan you want and to have the policy issued.