Handling Long-term Disability Associated With Failure to Accommodate

• Publication year: 2022
• Author: Joshua Bonnica

HANDLING LONG-TERM DISABILITY ASSOCIATED WITH FAILURE TO ACCOMMODATE

AUTHOR^*

Joshua Bonnica

When a plaintiff files a Fair Employment and Housing Act (FEHA)¹ claim of failure to accommodate a disability,² that plaintiff has the burden of proof to establish that, as an applicant or employee, plaintiff was a qualified individual capable of performing the essential functions of the job with or without reasonable accommodation.³

An employer has an affirmative duty to reasonably accommodate the known physical or mental disability of an applicant or employee, unless doing so would impose undue hardship.⁴ One form of reasonable accommodation is paid or unpaid leave.⁵However, the use of paid sick leave, earned vacation and/or paid time off (PTO) for disability leave can be finite.

WHAT DISABILITY BENEFITS ARE AVAILABLE TO DISABLED EMPLOYEES WHO HAVE EXHAUSTED PAID LEAVE?

Once disabled employees exhaust their paid leave time, the State of California offers short-term disability benefits with a maximum payout period of 52-weeks.⁶ Disabled employees alleging that they cannot work beyond that period may be eligible for long-term disability, which may be in the form of Social Security Disability Insurance Program (SSDI) benefits,⁷ or private Long-Term Disability Insurance (LTD) benefits.⁸

Generally, SSDI benefits are payable if employees are eligible and if they are unable to perform any occupation based on their experience, education and knowledge.⁹ These benefits are offered as a government benefit that employees have paid into if they have met certain requirements (i.e., having worked at least five of the past ten years; having attained at least 40 credits by contributing into Social Security over their work history, etc.).¹⁰

Private long-term disability plans, usually governed by the Employee Retirement Income Security Act of 1974 (ERISA),¹¹ are another source of disability benefits commonly offered to employees as a benefit of their employment. These plans have the most complex language, often changing the definition of disability over time, possibly impacting how employment law attorneys interpret paid benefits for employees.

While private disability application decisions are not publicly categorized, the Social Security Administration compiles statistics on applications approved and denied upon initial filing. From 2010 to 2019, the average disability application award rate hovered around 31%—meaning that nearly 70% of applications were denied.¹² An application denial cannot always be interpreted as certifying an inability to work on its face. While some denials are based on merit, others may be due to error. Unfortunately for SSDI applications, it can take up to 18 months for an appeal hearing to be heard, so the award of benefits can be delayed.

This article will focus on what plaintiff and defense attorneys should know when working on cases in which employees are eligible for LTD benefits, are applying for benefits, or are already receiving benefits.

POINTERS FOR PLAINTIFF'S ATTORNEYS

On employment disability leave cases, plaintiff's attorneys should consider the following issues prior to filing a complaint.

[Page 11]

IS THE EMPLOYEE ELIGIBLE FOR DISABILITY BENEFITS?

If employees are not working because of a physical or mental disability, they may be eligible for disability benefits. Depending on their eligibility and how...