Results 1 to 3 of 3

Thread: Disability Catch 22

  1. #1
    Join Date
    Aug 2006
    Posts
    8
    Thanks
    0
    Thanked 2 Times in 1 Post

    Default Disability Catch 22

    I was just approved for long term disability through my employer for my Lupus. I was approved, but they said they will check back periodically as they expect that I could return to work in the future. Here's the problem, Being away from the stress of my job has reduced my flares. So, if they say I am doing better and send me back to work, the stress comes back and so do the flares. Thus the catch 22. Any suggestions would be greatly appreciated.

    Ron

  2. #2
    Saysusie's Avatar
    Saysusie is offline Super Moderator Super ModeratorEmperor of the Universe
    Join Date
    Nov 2001
    Location
    Victorville, California
    Posts
    7,690
    Blog Entries
    9
    Thanks
    1,563
    Thanked 912 Times in 576 Posts

    Default

    First: let me applaud you for having your disability approved. So many of us with Lupus have been flat-out denied!! I understand your dilema and it was just that dilema that got my disability denied. Because I was off work during the process, my stress was greatly reduced and my symptoms began to lessen. Thus, as you said, the vicious cycle - I was denied because I was doing better.
    I do not know how you can fight this particular part of the battle except that I know that we are protecting under the ADA which states that your job must make accommodations for you (if you are forced to go back). I would surmise that one of the accommodations would be a position that was not as stressful as the one you previously held. You can call the ADA and speak with an advisor, they are very informative and helpful.
    Perhaps someone else here will have better advice for you. In the meantime, best of luck and congratulations again on getting DIB!

    Peace and Blessings
    Saysusie

  3. #3
    Join Date
    Aug 2006
    Posts
    1,574
    Thanks
    0
    Thanked 1 Time in 1 Post

    Default

    Unfortunately, the Americans with Disabilities Act (ADA) doesn't offer nearly as much protection to disabled employees as Comgress probably intended - as more and more conservative federal judges who are pro-business are appointed, they are gradually chipping away the protections from employees.

    Even though many people with lupus have substantial
    disabilities, the term has a specific meaning under the ADA. Under the ADA, an individual with a disability is a person who: has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.

    An impairment is substantially limiting if it prevents or significantly restricts the performance of a major life activity. Working is considered a major life acrivity. The nature, severity, duration, and long-term impact of the condition are all factors that go into determining whether an impairment rises to the level of an ADA isability. Mitigating measures, such as medication,are also considered - this is where it can get tricky for people with lupus, if the illness is completely or substantially controlled with medication all the time, there is no ADA disability - because the
    condition does not substantially limit a major life
    activity.

    In some circumstances. the ADA may apply even when the lupus is in remission. Chronic conditions that are substantially limiting when active or have a high likelihood of recurrence in substantially limiting forms are covered under the ADA.

    To show that the impairment substantially limits the life activity of working, an individual has to show that he or she is precluded by the impairment from a "substantial class of jobs or a broad range of jobs". If the impairment prevents you only from performing your particular job, it is not a substantial limitation in the major life activity of working. This is a major "out" for many employers because it imposes a very high burden on the employee. In reality, you will probably not have to worry about this unless you sue your
    employer, but be aware that is a very common and very effective line of defense to ADA claims.

    Also, the ADA only applies to employers with 15 or more employees unless they are "public entities", so if you work for a small business, there is often no ADA protection. There may be state laws and regulations about employment discrimination, but this varies from state to state.

    If you are a "qualified individual with a disability" for ADA purposes, the employer is required to provide "reasonable accomodations" in three basic areas - 1) the job application process, 2) job functions, and 3) benefits and privileges of employment (parking, cafeteria access, etc.). A reasonable accommodation is any modification to a job, employment practice or process, or a work environment that makes it possible for an qualified individual with a disability to fulfill the
    "essential functions" of a job. Employers are
    not required to provide items primarily for personal use, such as purchasing a wheelchair. Employers are also not required to make accomodations that would present an undue hardship to the employer. "Undue hardship" means that providing the reasonable accommodation would result in significant difficulty or expense, based on the resources and the operations of the employer. So a smaller employer would not be expected to make the same type of accomodations that might be expected of a larger employer. If providing accomodations to you would disrupt business operations, for example, by forcing other employees to change their
    schedules, this type of accomodation is generally
    considered an undue hardship.

    People in managerial and supervisory positions may have a hard time getting protection under the ADA. In order to be considered a "qualified individual" for ADA purposes, the employee has to show that he can perform the "essential functions" of the job with reasonable accomodation. Since the "essential functions" of a managerial or supervisory job often involve overtime, "on call" status, and being physically on premises to supervise other employees, an employee whose physical limitations restrict these activities often cannot fulfill the essential functions of the job, and is thus not protected by the ADA - this is a very high hurdle
    for the employee because he basically has the burden of proof to show that things like working overtime are not "essential functions" of the job.

    As for job transfers, an employer does not have an
    obligation to create a job that fits your needs. The employer must offer you a VACANT position in an
    equivalent job that you are qualified to do, if one
    exists and if doing the equivalent job will provide an effective accommodation - for example, offering an inside sales job instead of an outside sales job to an employee who is sensitive to sunlight.

    "Stress" is a hard issue in ADA matters; generally the employer doesn't have any obligation to offer you a "low-stress" job because stress is such an individual matter - something you find stressful may not affect me - it is almost impossible for the employer to monitor or control, so courts have fairly uniformly decided that this is not a reasonable accomodation in most cases.

    There are exceptions, but again, it's a high hurdle for the employee, especially in management level positions where a certain level of stress is a given for the job.

    If an equivalent vacant position does not exist, and you cannot do the essential functions of your old job, the employer must offer you any lower grade vacant positions; however, he does not have to pay salary and benefits equal to your old job. An employer is not required to "bump" or transfer another employee from his or her position to allow reassignment - the ADA does not require any employer to reassign an employee to a position that is not vacant, nor is the employer required to offer a higher-grade position as an accommodation. An employer isn't required to tranfer an employee even where there is a vacant position if the
    employee isn't qualified, or it would violate an
    existing seniority system or collective bargaining
    agreement.

    If you do have to go back to work, your best option is to think about what accomodations would help you, and show your employer that you can do the job with these accomodations without disrupting the business. Think about concrete things that are easily provided, like changing the lights in your office to reduce UV exposure, getting a parking space close to a door, changing your work schedule to allow for midday naps or a four-day work week if feasible, setting up a telecommuting system to allow you to work from home, etc. The more small stressors you can eliminate, the better. You should also talk to your employee benefits manager about your rights to take medical leave under FMLA, the Family and Medical Leave Act, or any applicable state laws. Taking FMLA leave may help you keep your existing health insurance benefits - you also have the right to extend your health insurance coverage under COBRA if you leave your job - again, this is an area to discuss with your benefits coordinator.

    Sorry this post is so long, but ADA law is an incredibly complex issue - it could literally fill a library, and there are no easy answers or quick
    fixes - I wish there were.

    One good source for more information
    the Job Accommodation Network
    800-526-7234
    PO Box 6080
    Morgantown, WV 26505-6080
    www.jan.wvu.edu

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •