We have been asked whether people placed on furlough, unpaid leave or terminated can file a claim for disability under their employer's disability plan. There are several factors to consider. Basically, if you were having difficulties at work due to your medical condition before your employer placed you on leave or your employment ended you need to prove that your disability began while you were working.
Keep in mind that disability insurers are being hit with an enormous amount of new claims based on COVID-19. Disability insurers are coming up with their own protocol for handling them. One insurer we contacted has a tape recorded message advising that if the caller is seeking to make a claim for disability, they must be disabled due to a medical condition and prove their claim with medical support. This is of course, true.
Another consideration is whether your long term disability insurance policy contains an eligibility provision that you cannot meet now that you are not working. Your insurer will likely claim that you are not eligible for coverage because you are not an 'active employee' under the policy terms. Keep in mind that there are exceptions to this requirement. However, we have seen several policies that extend coverage for a certain period of time during a temporary leave of absence.Do I Have A Disability Claim If I Cannot Go To Work Due to Risk of Exposure
Perhaps due to your underlying medical condition, you are at high risk to contracting COVID-19. We have received many calls from people who are immunocompromised due to medications they take for underlying medical conditions. If your doctor certifies that you cannot work due to being at high risk this may be enough to begin a claim for disability. However, keep in mind, that when the risk of exposure diminishes, so too, your disability claim may become unsupported. Each case is considered based on the facts which present different issues to be explored
There are many factors to consider during this unique time period.Severance Agreements
We have seen a large uptick in employers firing employees and offering severance pay if the employee signs a severance or release agreement. The goal of a severance agreement is to end all ties you have with your employer. Your employer wants to end the legal relationship and pay you money to release them from any liability going forward. If you sign a severance agreement, you often release any claims you may have under your employee benefit plans including a long term disability plan under ERISA. Severance agreements must provide the employee adequate time to review the document and consult an attorney. We suggest that you do not sign a severance agreement without going over it with an attorney to be sure you understand exactly what rights you are giving up by signing the agreement. It may be possible to add language to the severance agreement to protect your rights to file for long term disability benefits or to continue your long term disability claim. We have experienced many situations where we can protect our client's rights to long term disability benefits by adding language to the severance agreement, since employers have a fiduciary duty to protect their employee's rights to benefits and their intention is not to discriminate against the disabled.
If you are a front line worker who has become unable to continue working, we are available to answer your questions as you navigate what options you have to file a private claim. We do not handle Social Security disability.