Posted on August 11, 2019
Additional Relief For Your Social Security Disability Clients From an Employment Law Standpoint
Social Security disability attorneys or representatives are often not familiar with some of the civil rights laws and other remedies which may be available to their clients, beyond, or in lieu of, Social Security disability benefits, and which may result in additional or alternative sources of financial proceeds for their clients. Also, as Social Security disability claims have greatly increased due to the lagging economy, client advocates may encounter many persons who will not meet the stringent Social Security disability standards, but may be able to qualify for other relief. This article will explore some of these laws and remedies. Social Security Disability
Due to the complexity of some of the remedies and the intricate interaction between them, which often require balancing and negotiation, it will be beneficial to client advocates to establish a relationship with one or more attorneys who practice in the areas of law noted below if they do not, in order to determine if other remedies may exist for their clients. As many of these additional remedies have stringent time deadlines, inquiries should be made as quickly as possible to other counsel as to whether a client has additional remedies and the viability of pursuing them. Indeed, failure of an attorney or a representative to consider these remedies may be the source of a professional liability issue depending on the outcome of a client’s case.
An applicant for Social Security disability benefits frequently has a history, such as his medical conditions or work history, which has brought him to the position of applying for this type of benefit, which requires that he is deemed unable to perform substantial gainful work for a minimum of twelve (12) months or he has a condition that will result in death. That history often involves his employment situation and the nature of that situation can serve as the basis for additional remedies. Therefore, a thorough interview with a potential client should determine:
• Whether that person suffered an injury at the workplace;
• Whether his employer terminated him as a result of suffering the injury after the employer was informed that it was a work-related injury;
• Whether the injury, work-related or not, still permitted him to work for his employer with a reasonable accommodation by the employer. The courts’ interpretation of “reasonable accommodation” is discussed below;
• Whether the employer refused to make the reasonable accommodation and instead laid off or terminated the employee;
• Whether the employee, who formerly did not have any or few performance problems, suddenly received discipline or write-ups after the injury;
• Whether the employer should have been aware that the employee was suffering from physical or mental problems, and instead of helping him manage those problems, terminated him, laid him off, or eliminated his position;
• Whether the employee had available to him short and/or long-term disability benefits, some type of retirement disability or union benefits for which he could apply.
THE AMERICANS WITH DISABILITY ACT AND ITS AMENDMENTS
Significant legislation has been enacted to protect employees who have been injured in and out of the workplace and who are suffering from an illness. The Americans with Disabilities Act of 1990 (hereinafter “ADA”) was intended to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C.A. §12101 et seq. The Act applies to employers with 15 or more employees and prohibits discrimination against qualified individuals on the basis of a disability in regard to job application procedures, hiring, advancement, termination, compensation or job training. See 42 U.S.C. §12112(a).
In the years since the Act’s passage into law, the U.S. Supreme Court has handed down specific opinions which have curtailed the reach of the ADA and have greatly limited the definition of a disability under the ADA. Large clusters of people, initially covered by the ADA, have been shut out from the intended far-reaching protections as a result of those court opinions. The result has put a heavy burden of proving a disability on the plaintiff, which was clearly against Congress’ intent. See Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) and its companion cases and in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). As a result of these Supreme Court cases, lower courts have found that individuals with a range of substantially limiting impairments are not people with disabilities.
In order to rectify this situation, Congress passed the Americans with Disabilities Act Amendments Act (hereinafter “ADAAA”), which became effective on January 1, 2009. The ADAAA greatly broadens the relevant definitions of the ADA and gives renewed hope to disabled individuals who are ready, willing and able to work with a reasonable accommodation. The Act’s new language also enlarged the definition to include a larger array of individuals who are “regarded as” having a disability. Additionally, mitigating factors are no longer assessed in the evaluation of an individual as disabled.
If one has a client who lost his job due to a negative job action and who is covered by the newly expanded ADAAA, but had no recourse but to initiate a Social Security disability claim, either because his condition worsened or because he could not locate another job with his disabilities, he will be required to file a claim with a government agency at the local, state or federal level in order to protect his rights and preserve his right to bring later litigation, if necessary. That government agency may hold a fact-finding conference or a mediation, depending on the agency’s practice, and while the matter is at the agency level it may be settled without resorting to litigation. Bear in mind that the ADA claim can proceed independently and concurrent to the Social Security disability claim.
Employers are required by the ADAAA to reasonably accommodate those employees known to have a disability to allow for the fulfillment of essential job functions. However, these employers will not be required to make accommodations which will cause an undue hardship. Under U.S.C. §12111(9), those reasonable accommodations include, but are not limited to, (1) making existing facilities used by employees readily accessible to and usable by individuals with disabilities, (2) job restructuring, (3) modification of equipment or devices, (4) appropriate adjustment or modifications of examinations, training materials or policies, and (5) the provision of qualified readers or interpreters.
It is the employee’s responsibility to inform his employer that an accommodation is necessary in order for that employee to fulfill his essential job functions. It is also important to know that the new amendments make it clear that employees who are simply “regarded as” having a disability are not eligible for the aforementioned accommodations. Once the eligible employee requests an accommodation, an interactive process with the employer regarding the appropriate accommodations will begin. U.S.C. §12111(10) enumerates factors that would cause an undue hardship on the employer when accommodating an employee and are thus not mandated under the law. That list includes: (1) the nature and cost of the accommodation, (2) the overall financial resources of the facility or facilities, (3) the overall size of the business and (4) the type of operation.
It is also significant to note that simply because an employee’s doctor sends a note to the employer limiting the employee’s ability to work, requesting time off for the employee, requesting reduced hours, or asking that the employee be assigned to light duty, the employer is not necessarily governed by the doctor’s request. Legions of employees have been terminated because an employer either did not feel the need to honor a doctor’s request or seized upon the doctor’s request to terminate an employee because, according to the doctor, the employee cannot do the job as required. An employee would be wise to seek legal help, if possible, in negotiating a disability accommodation from an employer.
It is not uncommon for employers to begin plotting for an employee’s termination shortly after they are informed, formally or informally, of the employee’s illness. Red herrings often used by employers to terminate or alternatively force an employee to resign include giving an employee a series of baseless poor performance evaluations, job restructuring rendering the affected employee’s position nonessential, suddenly changing absence policies, or engaging in poor treatment of an employee which encourages his resignation.
THE REHABILITATION ACT
The Rehabilitation Act Title V entitled “Nondiscrimination under Federal Grants and Programs” 29 U.S.C.A. § 720 et seq. protects those with disabilities from discrimination on the basis of those disabilities in programs organized by or receiving money from the federal government. The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in Title I of the Americans with Disabilities Act described above.
THE PREGNANCY DISCRIMINATION ACT
The two primary laws that protect women during pregnancy are the Pregnancy Discrimination Act and the Family Medical Leave Act (“FMLA”). An amendment to Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act was established in 1978. The Act requires employers with 15 or more employees to treat employees with pregnancy-related conditions in the same manner required by law as those with other health conditions. For example, if an employee with a serious medical condition is permitted to take leave or work a modified schedule under FMLA, the pregnant woman will be afforded the same options. The Act also prevents an employer from firing or refusing to hire a woman based on her pregnancy or ability to take maternity leave. In that same light, an employee cannot lose credit accrued for seniority or retirement benefits during her leave. Lastly, an employer is required to keep the job open and maintain health care benefits as though the woman was on sick or disability leave.
Pregnant women also rely heavily on FMLA. As previously discussed, expecting and new mothers can take up to 12 weeks off within a 12 month period to care for the birth of their child. One key distinction between FMLA and the Pregnancy Discrimination Act is that FMLA only applies to employers of 50 employees or more. Moreover, the employee must have worked either one full year or 1250 hours to request FMLA leave.